Paul Gunderson v. BNSF Railway Company, 850 F.3d 962

Background

Gunderson, a longtime BNSF yard employee and UTU local officer, filed safety complaints and an injury report before being investigated in 2009 for allegedly harassing a coworker (Duke) and threatening a supervisor (Beam).
Management initiated two investigations after a union president complained Gunderson pressured witnesses to recant; Gunderson received in-person service for the first Notice and was later subject to a separate investigation based on a meeting where he made a remark construed as a threat.
After two formal disciplinary hearings (with union representation), General Manager Ebel — with HR input — concluded BNSF proved the charges and dismissed Gunderson; internal appeals and a Railway Labor Act arbitration panel (PLB) upheld the discharge.
Gunderson filed an FRSA complaint with DOL/OSHA alleging retaliation for protected safety activity; after extensive administrative discovery and a six-day ALJ hearing, the ALJ rejected his claim and issued a decision he did not seek review of; he then filed a de novo district-court action under FRSA’s 210-day “kick-out” provision.
The district court denied BNSF’s dismissal motion but, after discovery, granted summary judgment for BNSF: Gunderson had shown protected activity, employer knowledge, and adverse action, but failed to show his protected activity was a contributing factor to discharge; the court alternatively found BNSF would have dismissed him absent protected activity.
The Eighth Circuit affirmed on the merits, holding the disciplinary proceedings were unrelated to protected activity, separated by an intervening complaint, reviewed and affirmed internally and by the PLB and ALJ, and were decided by Ebel (not the lower supervisors accused of bias).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gunderson’s FRSA-protected activity was a "contributing factor" in his discharge	Gunderson: long history of safety advocacy, hostile supervisors, participation of those supervisors in investigations and hearings, disparate treatment vs. Mace — supports inference of retaliation	BNSF: investigations were triggered by independent complaint, discipline based on serious misconduct proved at hearings, ultimate decision by Ebel with HR input — non-retaliatory reasons defeat causation	Held: No. Evidence insufficient to permit a reasonable jury to find protected activity was a contributing factor; disciplinary reasons were independent and non-retaliatory
Whether Gunderson waived or lost his FRSA "kick-out" right by continuing administrative litigation past 210 days (waiver/laches)	Gunderson: statutory text grants an absolute right to bring a de novo action after 210 days if delay not due to bad faith; he timely filed after the ALJ decision	BNSF: continued administrative litigation after 210 days is wasteful and should forfeit the kick-out right; alternatively laches/waiver should bar the claim	Held: Court did not decide waiver/laches. It rejected BNSF’s undeveloped waiver argument and declined to apply laches because BNSF failed to adequately develop it; remained an open question for another day

Key Cases Cited

Kuduk v. BNSF Ry., 768 F.3d 786 (8th Cir.) (FRSA contributing-factor standard and causation principles)
Feldman v. Law Enf't Assocs. Corp., 752 F.3d 339 (4th Cir.) (causal connection may be severed by intervening legitimate event)
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855 (8th Cir.) (pretext inquiry focuses on employer's good-faith belief in misconduct)
Richey v. City of Independence, 540 F.3d 779 (8th Cir.) (protected activity does not shield employee from legitimate discipline)
Bone v. G4S Youth Servs., LLC, 686 F.3d 948 (8th Cir.) (disparate-treatment comparisons undermine retaliation claims when comparators share protected activity)
Staub v. Proctor Hosp., 562 U.S. 411 (U.S.) ("cat’s paw" theory: subordinate’s biased act must be proximate cause of adverse action)
PR Group, LLC v. Windmill Int’l, Ltd., 792 F.3d 1025 (8th Cir.) (waiver principles where party’s conduct undermines alternate remedy)
Brown-Mitchell v. Kansas City Power & Light Co., 267 F.3d 825 (8th Cir.) (laches applied to post-charge delay in employment claims)
Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (U.S.) (common-law limitations and equitable defenses inform statutory remedies)