Rita Foster v. BNSF Railway Company
866 F.3d 962
8th Cir.2017Background
- On April 2, 2012, a BNSF crew-change near an unlit, rail-only bridge resulted in crewman John Moore falling; coworkers (Foster, Kline, Snyder) gave written statements and later testimony describing hazardous walking conditions.
- BNSF initiated an investigation, held a formal hearing (Jan. 2013) with witnesses (Trainmaster Dixon, Road Foreman Knutstrom), and later disciplined the three employees; a Public Law Board partially reinstated or removed discipline.
- The employees filed OSHA complaints under the FRSA alleging retaliation for providing information about alleged safety-related violations; after OSHA did not issue a final decision within 210 days, they sued in federal court.
- Plaintiffs claimed protected activity occurred in (1) handwritten statements to Dixon, (2) recorded/in-person statements to BNSF claims rep Murphy, and (3) testimony at the investigative hearing; alleged adverse actions included investigation, delays, increased "operations testing," pressure to accept lower‑paying work, and discipline.
- District court granted BNSF summary judgment: dismissed some claims for failure to exhaust administrative remedies and held exhausted claims failed on the merits; Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs exhausted administrative remedies for claims about increased operations testing and pressure to take lower‑paying work | OSHA complaint encompassed retaliation arising from the investigation generally, so these consequences are within scope | OSHA complaint did not mention testing or pressure; those claims are not reasonably related to the investigation allegations | Not exhausted — claims dismissed |
| Whether statements to BNSF claims representative Murphy were exhausted | Statements to Murphy were part of the same reporting and thus covered by the OSHA complaint | OSHA complaint described written statements and hearing testimony, not statements to Murphy; Murphy was not part of the investigation | Not exhausted — claims dismissed |
| Whether handwritten statements to Dixon constituted protected activity under 49 U.S.C. § 20109(a)(1) (reporting possible violation of federal law) | Statements reporting unsafe bridge conditions reasonably could be viewed as information about conduct violating federal law (e.g., FELA-related negligence) | Statements merely reported a hazardous condition and did not allege company knowledge/failure to remedy; plaintiffs abandoned the §20109(b)(1)(A) hazardous‑condition theory | Not protected under §20109(a)(1) as pled — cannot support FRSA retaliation claim |
| Whether plaintiffs showed contributing‑factor causation between protected activity (hearing testimony) and discipline | Hearing testimony contributed to adverse discipline; Dixon and Knutstrom retaliated to shift blame, which led to Thompson disciplining plaintiffs | Some adverse actions occurred before testimony; no evidence Thompson acted with retaliatory motive or that earlier supervisors retaliated because of plaintiffs’ testimony | Insufficient evidence of retaliatory intent or contributing factor; merits fail |
Key Cases Cited
- Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675 (8th Cir. 2012) (standard of review for summary judgment)
- Fanning v. Potter, 614 F.3d 845 (8th Cir. 2010) (Title VII exhaustion: claim must grow out of or be reasonably related to administrative charge)
- Dorsey v. Pinnacle Automation Co., 278 F.3d 830 (8th Cir. 2002) (scope-of-charge/exhaustion principles)
- Stuart v. Gen. Motors Corp., 217 F.3d 621 (8th Cir. 2000) (claim limited to scope of investigation reasonably expected from initial charge)
- Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (elements of prima facie FRSA retaliation claim)
- EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992) (administrative claims may be exhausted if developed during agency investigation)
- Staub v. Proctor Hosp., 562 U.S. 411 (U.S. 2011) (supervisor’s retaliatory animus can be imputed to decisionmaker)
- Heim v. BNSF Ry. Co., 849 F.3d 723 (8th Cir. 2017) (discipline connected to reporting injury insufficient without evidence of intentional retaliation)