Kelly Heim v. BNSF Railway Company
849 F.3d 723
| 8th Cir. | 2017Background
- Heim, a BNSF track worker, was injured when a loose rail rolled onto his foot while he stepped between a loose and fixed rail to pick up debris after a safety briefing warning to avoid the “danger zone.”
- Heim initially reported the injury at the hospital; his supervisor White allegedly pressured him to alter the injury report to avoid indicating another person caused it.
- BNSF investigated and held a hearing; Division Engineer Turnbull concluded Heim violated rules requiring alertness and care and issued a Level S (30-day) Record Suspension and one-year probation (no unpaid time ultimately taken).
- Turnbull admitted many employees likely step near loose rail without discipline and said Heim’s injury made the event significant; BNSF witnesses described a company incentive program that rewards reduced reportable injuries.
- Heim sued under the FRSA, alleging BNSF disciplined him in retaliation for reporting a work-related injury; the district court granted summary judgment to BNSF, and the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Heim made a prima facie FRSA retaliation claim | Heim: discipline was caused, at least in part, by his injury report; discipline and report are inextricably linked | BNSF: discipline was for unsafe conduct (stepping near loose rail); any connection to the injury report is incidental | Court: Heim failed to show contributing factor as intentional retaliation; mere factual linkage insufficient |
| Standard required to prove "contributing factor" under FRSA | Heim: factual connection/inextricable link between report and discipline suffices | BNSF: plaintiff must show retaliatory intent contributed to action | Court: follows Kuduk — plaintiff must show intentional retaliation prompted by protected activity |
| Whether temporal proximity and incentive program create inference of retaliation | Heim: timing and company incentives support inference | BNSF: incentive applies company-wide and supervisors trained not to retaliate; timing alone is insufficient | Court: temporal proximity and incentive evidence, standing alone, do not create sufficient inference of intentional retaliation |
| Sufficiency of selective-enforcement evidence (Turnbull admissions) | Heim: Turnbull admitted others stepped similarly but were not disciplined, implying selective enforcement tied to reporting | BNSF: unreported incidents would have gone unnoticed; discipline followed from injury and investigation | Court: Turnbull’s statements insufficient without more specific evidence of retaliatory motive |
Key Cases Cited
- Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (FRSA contributing-factor requires showing intentional retaliation prompted by protected activity)
- Helmig v. Fowler, 828 F.3d 755 (8th Cir. 2016) (summary judgment standard and review on appeal)
- Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) (discussion on evidentiary showing for retaliatory motive in protected-activity cases)
- Ray v. Union Pac. R.R. Co., 971 F. Supp. 2d 869 (S.D. Iowa 2013) (illustrative holding that factual intertwinement can support a contributing-factor inference in certain circumstances)