Kuduk v. BNSF Railway Co., 980 F. Supp. 2d 1092

Background

Plaintiff worked for BNSF from 1968 until his September 2010 dismissal; he had recently been placed on one-year probation after a December 2009 derailment for which he signed a waiver admitting responsibility.
In May 2010 Plaintiff complained (through his union rep) about a Trainmaster’s banner test and separately reported a heavy, potentially hazardous derail handle at an Anheuser‑Busch facility to BNSF’s safety team; the handle report proceeded to a safety investigation.
After the May reports, Trainmaster Greg Jaeb performed operations/banner tests on Plaintiff; in June 2010 Jaeb and another trainmaster observed Plaintiff walking between rails on Track 190 ("fouling the tracks"), a serious safety violation among BNSF’s "Eight Deadly Decisions."
Plaintiff testified he walked between rails to safely retrieve/attach an end‑of‑train device, had taken precautions (handbrakes, emergency brakes, chocks) and believed the ballast elsewhere was more hazardous.
Following an investigation and hearing, BNSF General Manager Richard Ebel (with higher‑level approval) terminated Plaintiff for fouling the tracks while on probation; parties later agreed to reinstate him on paper through his planned retirement date.
Plaintiff filed an OSHA FRSA complaint and, after statutory exhaustion, sued under 49 U.S.C. § 20109 alleging retaliation for reporting safety issues; BNSF moved for summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiff engaged in FRSA‑protected reporting of the banner test	Plaintiff says reporting the banner test (via union rep) reasonably raised safety concerns	BNSF: report went only to a union rep (no supervisory/investigative authority), so not FRSA‑protected	Not protected — report to union rep not to person with authority under §20109(a)(1)(C)
Whether Plaintiff’s derail‑handle complaint was protected	Plaintiff contends he in good faith reported a hazardous condition to the safety team	BNSF: Plaintiff didn’t show a good‑faith belief of a regulatory violation and failed to bad‑order the equipment	Claim survives summary judgment stage on this element — factual dispute exists about good faith
Whether decision‑makers knew of protected activity / causal link	Plaintiff argues Jaeb knew and his conduct influenced termination (invoking Staub) and timing supports causation	BNSF: decision was by Ebel with higher approval; no evidence decision‑makers knew of protected reports; termination consistent with rules	Court: no evidence Ebel or reviewers knew of reports; Staub inapposite; no prima facie causation established
Whether protected activity was a "contributing factor" and, if shown, whether BNSF would have fired him anyway	Plaintiff points to temporal proximity, repeated tests by Jaeb, and that the fouling allegation was pretextual	BNSF: consistent neutral enforcement of disciplinary policy (second serious violation on probation is dismissible); similarly disciplined employees exist	Court: Plaintiff failed to show contributing factor or pretext; even if prima facie shown, BNSF demonstrated by clear and convincing evidence it would have fired him under its PEPA policy; summary judgment for BNSF

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden and standard)
Anderson v. Liberty Lobby, 477 U.S. 242 (genuine dispute / materiality standard for summary judgment)
Araujo v. New Jersey Transit Rail Operations, 708 F.3d 152 (3d Cir. 2013) (FRSA prima facie elements and burden‑shifting)
Staub v. Proctor Hospital, 562 U.S. 411 (2011) (supervisor’s biased actions that are a proximate cause can expose employer to liability — discussed and distinguished)
Amini v. City of Minneapolis, 643 F.3d 1068 (8th Cir. 2011) (definition of genuine dispute in summary judgment context)
Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir. 2008) (temporal proximity and prior discipline limits inference of retaliation)
Kipp v. Missouri Hwy. & Transp. Comm’n, 280 F.3d 893 (8th Cir. 2002) (time lapse undermining causation inference)