Thomas Kuduk v. BNSF Railway Company, 768 F.3d 786

Background

Kuduk, a long-time BNSF brakeman, was discharged in September 2010 after a June 9, 2010 fouling-the-tracks incident and a prior December 2009 S-Level safety violation.
He had recently completed a 30-day suspension and one-year probation from the 2009 derailment incident, with probation permitting further discipline for violations.
BNSF’s rules treat fouling tracks as a serious Level S violation and list it among Eight Deadly Decisions.
In May–June 2010, Kuduk made safety-related complaints: a May 17 banner-test concern and a May 24 SIRP derail-handle concern; neither was framed as reporting a hazardous condition per FRSA § 20109(b)(1)(A).
After an internal investigation and a formal hearing, discharge was approved by regional management; union negotiations continued, yielding a final arrangement for service through mid-2011 with full benefits upon retirement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kuduk proved a prima facie FRSA retaliation claim.	Kuduk argues protected activity by contacting union and filing SIRP; cat's-paw knowledge could show causation.	BNSF contends no protected activity knowledge reached decision-makers; no contributing-factor evidence.	No prima facie showing; protected activities lacked causal link to discharge.
Whether Kuduk's communications to union and about the derail-handle were protected activities under FRSA.	Kuduk contends these were safety-related reports triggering FRSA protection.	These communications were not reports of hazardous conditions; at most, disagreements over handling.	Not protected activities under FRSA for these communications.
Whether the SIRP derail-handle complaint can establish contributing-factor evidence.	Complaint showed safety concerns; could link to discharge.	SIRP complaint was separate and had no nexus to the fouling-the-tracks incident.	No causation link; SIRP not a contributing-factor showing.
Whether Jaeb’s knowledge constitutes a cat’s-paw basis for liability.	Jaeb knew of protected activity and influenced the discharge.	No evidence Jaeb’s actions or knowledge affected decision-makers.	Jaeb’s involvement did not show knowledge to decision-makers or retaliatory motive.
Whether BNSF proved by clear and convincing evidence it would have discharged without protected activity.	Discharge would be different if protected activity were considered; pretext possible.	Evidence shows policy enforcement and similar disciplinary actions for others on probation.	BNSF established by clear and convincing evidence it would have discharged regardless.

Key Cases Cited

Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011) (cat’s-paw liability and knowledge-based causation under FRSA/intentional retaliation)
Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893 (8th Cir. 2002) (no need to reweigh employer discipline; focus on causal link)
Hervey v. Cnty. of Koochiching, 527 F.3d 711 (8th Cir. 2008) (temporal proximity alone is insufficient evidence of retaliation)
Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999) (contributing-factor standard requires more than mere proximity)
Lomabardi? (example format), 717 F.3d 1121 (10th Cir. 2013) (contributing-factor standard; need not prove motive, but must show intentional retaliation)