Case Information
*2 Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Michael D. Loos brought two claims against BNSF Railway Company: a retaliation claim under the Federal Railroad Safety Act (“FRSA”) and a negligence claim under the Federal Employers Liability Act (“FELA”). The district court granted BNSF summary judgment on the retaliation claim, but the negligence claim proceeded to trial where a jury rendered a verdict in favor of Loos. Loos appeals the grant of summary judgment to BNSF on his retaliation claim. BNSF cross-appeals denial of its motion to offset the amount of tax BNSF argues the Railroad Retirement *3 Tax Act (“RRTA”) requires it to withhold from the judgment on Loos’s FELA claim. For the following reasons, we affirm both decisions.
I. Background
Loos worked for BNSF for fifteen years as a conductor, brakeman, and switchman before BNSF fired him on November 29, 2012. During his employment, Loos made a number of safety reports, and he served on BNSF’s site safety committee for an unspecified period in 2007 and 2008. Between 2006 and his dismissal, Loos accumulated a number of attendance violations. The BNSF attendance policy allows each employee a certain number of absences during each three-month rolling period. If an employee exceeds the number of allowed absences during a given three-month period, BNSF disciplines the employee in accordance with a schedule of progressively increasing punishments. The first violation results in a formal reprimand, the second violation in a ten-day record suspension, the third in a twenty- day record suspension, and the fourth in a possible discharge. The employee also may be subject to dismissal, among other reasons, for having an active “Level S” violation (denoting a significant rule violation) on his record and accumulating three active attendance violations. Attendance violations remain active until the employee works one year without a new attendance violation. An employee may also request alternative handling, under which the employee agrees to participate in a plan designed to reduce future violations and, in return, does not receive an attendance violation.
Loos violated the policy twice in 2006, receiving first a formal reprimand, then a ten-day record suspension. In 2008, Loos violated the policy twice, receiving *4 alternative handling and then a formal reprimand. After the second 2008 violation, Loos received a letter from his supervisor explaining that Loos worked between about thirty and forty hours per month during October and November of 2008 while his peers worked an average of 170 hours per month. The supervisor warned him that continuing to work less than full-time work hours would be considered an attendance violation. However, on June 15, 2009, Loos admitted another attendance violation and received a Level S ten-day record suspension. On March 22, 2010, Loos violated attendance rules by failing to notify a supervisor of the nature of a family-emergency absence within twenty-four hours and received alternative handling. That same month, Loos violated the attendance policy again and received a Level S thirty-day record suspension. BNSF then placed Loos on a three-year probation period during which “[a]ny rules violation . . . could result in further disciplinary action.” Loos’s attendance problems continued, and BNSF warned him in July 2010 that if he did not maintain full-time work hours, it would be considered another Level S violation.
On December 19, 2010, Loos twisted his knee when he fell into a snow- covered drainage grate in the train yard. He reported the workplace injury and missed work until May 16, 2011 when his orthopedist released him to work without restrictions. Later in May, Loos requested and was denied leave under the Family Medical Leave Act (“FMLA”), because he had not worked a sufficient number of hours in the previous year to qualify. The FMLA request did not include a statement from his doctor or any other form of medical documentation. In the summer of 2011, Loos requested to use the “injury on duty” (“ION”) code to take excused absences due to flare-ups of his knee injury. His supervisor, Matt Bailey, initially responded that the ION code was not available to him because “[w]e don’t do it anymore.” *5 When Loos pressed him further, Bailey stated, “I won’t authorize it, and that’s the end of it.” In his deposition, Bailey clarified that the ION code is available, but it requires medical documentation and clearance through the medical department—a policy, Bailey admitted, that is not written down and which he did not communicate to Loos. Later in 2011, Loos violated the attendance policy twice, and he received first a formal reprimand and then a ten-day record suspension. Loos testified in his deposition that at least one of these violations resulted from injury flare-ups, but he ultimately admitted the violations and waived his right to a formal investigation both times. After the second 2011 violation, BNSF placed Loos on a one-year review period.
In January 2012 Loos testified on behalf of two former co-workers, Paul Gunderson and David Peterson, in a hearing before a Department of Labor administrative law judge considering Gunderson and Peterson’s claims against BNSF for retaliatory dismissal under FRSA. BNSF authorized Loos’s absence to testify, but, shortly after the hearing, it sent Loos an investigation notice relating to the day of work he missed to testify. In a related meeting, trainmaster Greg Jaeb, a supervisor, asked for a copy of the subpoena and stated that “this could be bad for you.” It is unclear whether Jaeb was referring to Loos’s testimony or to the effect of an attendance violation. BNSF did not ultimately require Loos to produce the subpoena and later canceled the investigation.
In the three-month period between May and July 2012, Loos missed eight-and- a-half weekdays and two weekend days. For that period, the attendance policy allowed him to miss only seven-and-a-half weekdays and no weekend days. He missed five days due to knee-injury flare-ups, two days (including Sunday, July 8) for personal reasons, and one-and-a-half days for a family emergency. During the three- *6 month period, Loos had requested and was denied permission to use the “ION” code to designate his knee-injury-related absences as excused. BNSF emphasized that it denied Loos’s request because he did not provide medical documentation. BNSF issued an investigation notice in August 2012 and held a formal investigation on November 16, 2012. In the interim, Loos submitted a second FMLA request in September 2012, including a statement from his doctor. At the hearing, Loos submitted a note from his doctor dated November 6, 2012, explaining that he would have to miss work because of knee-injury flare ups and that these issues were present during May, June, and July of 2012. The BNSF investigator found that Loos had violated the attendance policy. Thus, as Loos had accumulated a total of three active attendance violations and an active Level S violation, BNSF dismissed Loos.
Loos filed suit on December 9, 2013, alleging that BNSF retaliated against him in violation of FRSA and that BNSF was liable under FELA for negligently causing his knee injury. The district court granted BNSF summary judgment on Loos’s FRSA claim, but Loos’s FELA claim proceeded to trial. The jury ruled in Loos’s favor and awarded $85,000 for past pain, disability, and emotional distress; $30,000 for lost wages; and $11,212.78 for past medical expenses. BNSF moved under Federal Rule of Civil Procedure 59(e) for the court to offset the lost wages award by the amount of Loos’s share of taxes owed under the RRTA. The district court found that no RRTA tax was owed on the award and denied BNSF’s motion. In February 2016, BNSF partially satisfied the judgment, withholding from the payment the amount of the disputed RRTA taxes. Loos appeals summary judgment on his FRSA claim, and BNSF cross-appeals the district court’s determination with respect to RRTA taxes.
II. Discussion
A. FRSA Retaliation Claim
“We review a district court’s grant of a motion for summary judgment de novo,
viewing all evidence and drawing all reasonable inferences in the light most favorable
to the nonmoving party.”
Heim v. BNSF Ry. Co.
,
To make a
prima facie
case, Loos must demonstrate: that (1) “he engaged in
protected activity”; (2) BNSF “knew or suspected, actually or constructively, that he
engaged in the protected activity”; (3) “he suffered an adverse action;” and (4) “the
circumstances raise an inference that the protected activity was a contributing factor
in the adverse action.”
See id.
The parties do not dispute that Loos engaged in
protected activity of which BNSF was aware and that Loos suffered an adverse
*8
action. Thus, we need only determine whether a genuine dispute exists as to the final
prong—whether the circumstances raise an inference that Loos’s protected activity
was a contributing factor to his discharge. “[A] contributing factor is any factor
which, alone or in connection with other factors, tends to affect in any way the
outcome of the decision.”
Id.
at 791 (quotation omitted). Though the employee need
not “conclusively demonstrate the employer’s retaliatory motive,”
id.
, he must show
that intentional retaliation prompted by a protected activity was a contributing factor,
Blackorby v. BNSF Ry. Co.
, 849 F.3d 716, 722 (8th Cir. 2017). To determine
whether the circumstances raise an inference of retaliatory motive in the absence of
direct evidence, we consider circumstantial evidence such as the temporal proximity
between the protected activity and the adverse action, indications of pretext such as
inconsistent application of policies and shifting explanations, antagonism or hostility
toward protected activity, the relation between the discipline and the protected
activity, and the presence of intervening events that independently justify discharge.
See DeFrancesco v. Union R.R. Co.
, ARB No. 10-114,
*9 Loos argues that BNSF dismissed him in retaliation for one or more of three protected activities: (1) submitting safety reports and serving on the safety committee, (2) reporting an on-duty injury, and (3) testifying in the Peterson-Gunderson FRSA hearing. None of these activities occurred in temporal proximity to Loos’s discharge. Loos served on the safety committee between 2007 and 2008, approximately five years prior to his dismissal. Likewise, the safety report documented in the record occurred in 2007. Loos reported his on-duty injury in 2010, almost two years prior [6]
to his dismissal, and he testified in the Peterson-Gunderson hearing approximately
ten months prior to his dismissal. By comparison, Loos’s attendance violations began
before the protected activities occurred and continued consistently until his discharge.
Kuduk
explained that more than a temporal proximity is required to find retaliatory
motive “especially . . . when the employer was concerned about a problem before the
employee engaged in the protected activity.”
The thrust of Loos’s argument is that BNSF retaliated against him by refusing to allow him to use the ION code when his injury flared up. Although using the ION code would not have prevented the 2012 attendance violation that ultimately prompted Loos’s dismissal, it would have prevented his 2011 violations. Without [7] the 2011 violations, Loos would not have had a sufficient number of active attendance violations to qualify for dismissal under the policy. Thus, the argument [8] goes, if BNSF refused the ION code in retaliation for Loos reporting the injury, that *10 retaliatory motive contributed to his dismissal. However, the evidence does not support the conclusion that BNSF acted with such a retaliatory motive.
When Loos requested to use the ION layoff code for flare-ups of his injury, the
only medical documentation BNSF had was the letter from Loos’s doctor releasing
him to work without restriction. Loos did not provide any medical documentation
until his September 2012 FMLA leave request and the November 2012 letter from his
doctor explaining that flare-ups would have been occurring during May, June, and
July of 2012. BNSF did not have either of these documents in 2011 when it refused
the ION code. Rather, the information BNSF had at the time it refused the ION code
indicated that Loos was fit for work without restriction.
See Gunderson
, 850 F.3d
at 969 (“The critical inquiry in a pretext analysis is . . . whether the employer in good
faith believed that the employee was guilty of the conduct justifying discharge.”
(quotation omitted)). Loos fails to provide evidence that this reason is inconsistent
or pretextual. First, Loos points to testimony asserting that BNSF allowed another
employee—Jake Kluver—to use the ION code for absences due to flare-ups of an
injury after he was released to work without restriction. However, Loos has not
carried his burden to demonstrate that Kluver was “similarly situated in all relevant
respects.”
See Harvey v. Anheuser-Busch, Inc.
,
Loos emphasizes the testimony of Mullins and Joyce, two former BNSF
employees who asserted that BNSF unofficially stopped allowing the ION code for
*11
injury flare-ups in 2000 when it instituted the attendance policy because of concerns
its use would alter BNSF’s injury-reporting obligations under FRSA. The district
court did not consider Mullins’s and Joyce’s testimony because Loos failed to
disclose them as experts at the appropriate time. Loos does not expressly challenge
this decision, but even if we consider Mullins’s and Joyce’s testimony, it does not
support an inference of retaliatory motive. If BNSF indeed had an across-the-board
practice of disallowing the ION code for injury flare-ups, the denial in Loos’s case
would not be evidence that BNSF intended to retaliate against him specifically for
protected activity. As such, whether or not such a policy, if it existed, would be fair
is not at issue here.
See Gunderson
,
Loos also points to a 2011 exchange between himself and Bailey, a supervisor, related to Loos’s ION code request. Loos testified that Bailey refused to authorize the ION code because it was not available to him. When Loos pressed for further explanation, Bailey responded, “It’s just not [available]. We don’t do it anymore.” This statement is susceptible to two interpretations. On the one hand, it supports Mullins’s and Joyce’s testimony that BNSF categorically denied ION code use for flare-ups after 2000. As described above, such a situation does not support an inference of retaliatory motive against Loos. Second, the statement may be interpreted to mean that Loos could not use the ION code anymore because he had been released to work without restriction. That interpretation, likewise, does not support an inference of retaliatory motive because it supports BNSF’s explanation that it denied the ION code because Loos failed to provide the necessary medical documentation. Next, Loos points to an exchange that took place in 2010 or 2011 between Phillip Mullen, the terminal superintendent, and Jeremy Brown, a BNSF switchman and the switchmen’s union local chairman, in which Mullen expressed *12 significant frustration with Loos’s low attendance during a monthly local chairmen’s meeting. Nothing in the exchange implies that any scrutiny of Loos’s attendance was a pretext to punish him for protected activities.
Loos’s final argument with respect to the 2011 violations consists of the assertion that BNSF should have granted Loos FMLA leave in 2011, even though he was not eligible. This refusal to make a special exception to FMLA requirements, Loos contends, demonstrates retaliatory motive. We disagree. A railroad may refuse to make a policy exception without retaliatory motive, and Loos points to nothing else surrounding the FMLA denial that would indicate retaliatory motive drove that decision.
Likewise, the circumstances surrounding Loos’s testimony in the Peterson-
Gunderson hearing ultimately do not support an inference of retaliatory motive. After
Loos testified at the hearing, he received an investigation notice for the day he missed
to testify and Greg Jaeb, one of his supervisors, asked to see the subpoena. During
the exchange, Jaeb opined that “this could be bad for you.” Loos never produced the
subpoena, and BNSF canceled the investigation. In order for Jaeb’s statements to
constitute evidence of retaliatory motive on the part of BNSF, there must be “proof
that a supervisor ‘perform[ed] an act motivated by [discriminatory] animus that is
intended
by the supervisor to cause an adverse employment action . . . if that act is a
proximate cause of the ultimate employment action.”
Gunderson
,
Finally, Loos points to two exchanges during the investigation hearing that he contends demonstrate his dismissal was “preordained” and driven by retaliatory motive. First, Loos argues that Wright was reluctant to admit into evidence Loos’s September 2012 FMLA application and the November 6, 2012 doctor’s note. This reluctance, Loos contends, demonstrates that the dismissal was “preordained.” However, the record demonstrates that Wright merely questioned the relevance of medical documentation from September and November to a violation that occurred during May, June, and July. After stating this reservation, Wright admitted the evidence. The record does not support Loos’s characterization of Wright’s conduct as demonstrating he intended to discharge Loos regardless of what the evidence showed. Second, Loos points to an exchange between Loos’s union representative, Jeff Pientka, and Wright. When Pientka harangued Wright at length for reasons unrelated to the subject of the investigation, Wright informed Loos that he would ask Loos to find a different union representative if Pientka could not refrain from disrupting the investigation. After Wright allowed Loos and Pientka a recess to confer, the investigation proceeded without further disruption. Loos characterizes this exchange as intimidating and evincing retaliatory intent, but the record does not support that conclusion.
In sum, the evidence does not raise a genuine dispute that retaliatory motive prompted by protected activity contributed to Loos’s dismissal. As a result, Loos has *14 failed to make a prima facie case and, accordingly, we affirm the district court’s decision to grant BNSF summary judgment on Loos’s FRSA retaliation claim.
B. RRTA Tax Withholding
In relation to Loos’s succesful FELA claim, BNSF cross-appeals the district
court’s denial of its Rule 59(e) motion seeking to set off the amount of RRTA tax that
it argues it is required to withhold and to remit from the portion of Loos’s recovery
designated for lost wages. The district court denied the requested offset, determining
that the income tax exclusion for personal-injury awards,
see
26 U.S.C. § 104(a)(2),
excepted the award for lost wages from RRTA taxation. We review for an abuse of
discretion a district court’s denial of a Rule 59(e) motion to amend or alter the
judgment.
Avon State Bank v. BancInsure, Inc.
,
The Railroad Retirement Act (“RRA”), 45 U.S.C. §§ 231-231v, is the railroad-
industry equivalent to the Social Security Act (“SSA”) and provides retirement
benefits funded by employment taxes collected under the RRTA, 26 U.S.C. §§ 3201-
02, 3211-12, 3221, 3231-33, 3341;
see Cowden v. BNSF Ry. Co.
, No. 4:08CV01534
ERW,
Both the RRA and the RRTA define the term “compensation.” See 45 U.S.C. § 231(h); 26 U.S.C. § 3231(e). The RRA defines “compensation” as “any form of money remuneration paid to an individual for services rendered as an employee to one or more employers . . . including remuneration paid for time lost as an employee.” 45 U.S.C. § 231(h)(1). The RRA defines “pay for time lost” as “the amount [the employee] is paid by an employer with respect to an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Id. § 231(h)(2). The RRB has interpreted that definition to encompass FELA judgment awards for lost wages and, thus, considers FELA judgment awards when calculating the employee’s benefits. See Railroad Retirement Board, Railroad Retirement Service Credits and Pay for Time Lost 2 (2011).
The RRTA also defines “compensation” as “any form of money remuneration paid to an individual for services rendered as an employee to one or more employers” but does not expressly include pay for time lost. 26 U.S.C. § 3231(e)(1). The IRS interprets “compensation” under the RRTA as having “the same meaning as the term wages in [FICA] . . . except as specifically limited by the [RRTA] . . . or regulation.” 26 C.F.R. § 31.3231(e)–1(a)(1). The regulation further provides that “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identifiable period during which the employee is absent from the active service of the employer . . . as well as pay for time lost.” Id. § 31.3231(e)–1(a)(3)-(4). Under this regulation, damages for lost wages fit well *16 within the definition of “compensation.” Loos challenges this interpretation of the RRTA.
Under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
, we
must first determine whether “Congress has directly spoken to the precise question
at issue.”
Although damages for lost wages are a “form of money remuneration paid to
an individual,” the RRTA only considers such remuneration “compensation” if it is
paid “for services rendered as an employee.” In cases interpreting FICA, the Supreme
Court has defined this concept broadly to refer to “not only work actually done but
the entire employer-employee relationship for which compensation is paid to the
employee by the employer.”
Social Sec. Bd. v. Nierotko
,
Under the RRTA’s plain text, damages for lost wages are not remuneration “for services rendered.” Damages for lost wages are, by definition, remuneration for a *17 period of time during which the employee did not actually render any services. Instead, the damages compensate the employee for wages the employee should have earned had he been able to render services. Unlike FICA, the plain language of the RRTA refers to services that an employee actually renders, not to services that the employee would have rendered but could not. See 26 U.S.C. § 3231(e)(1); see also id. § 3231(d) (defining “service”). Thus, damages for lost wages do not fit within the plain meaning of the RRTA.
On the other hand, BNSF and the Government contend that the RRA and
RRTA are
in pari materia
, and, thus, we should read the RRA definition of
“compensation” into the RRTA. The RRA and RRTA, they argue, accomplish a
unified purpose: the RRA provides benefits, while the RRTA funds them. Thus,
because the RRA expressly considers pay for time lost in calculating benefits, it
makes sense that the RRTA would tax pay for time lost to pay for those benefits.
See
Phillips v. Chi. Cent. & Pac. R.R. Co.
,
The history of the RRTA confirms that this difference is intentional. Prior to 1975, the RRTA’s definition of “compensation” expressly included “pay for time lost,” using language and structure identical to that of the RRA:
(1) The term “compensation” means any form of money remuneration earned by an individual for services rendered as an employee to one or more employers, or as an employee representative, including remuneration paid for time lost as an employee , but remuneration paid for time lost shall be deemed earned in the month in which such time is lost . . . .
(2) A payment made by an employer to an individual through the employer’s payroll shall be presumed, in the absence of evidence to the contrary, to be compensation for service rendered by such individual as an employee of the employer in the period with respect to which the payment is made. An employee shall be deemed to be paid “for time lost” the amount he is paid by an employer with respect to an identifiable period of absence from the active service of the employer, including absence on account of personal injury , and the amount he is paid by the employer for loss of earnings resulting from his displacement to a less remunerative position or occupation. If a payment is made by an employer with respect to a personal injury and includes pay for time lost, the total payment shall be deemed to be paid for time lost unless, at the time of payment, a part of such payment is specifically apportioned to factors other than time lost, in which event only such part of the payment as is not so apportioned shall be deemed to be paid for time lost.
26 U.S.C. § 3231(e)(1), (2) (1970) (emphasis added). In 1975, Congress amended the
RRTA to remove the express inclusion of “pay for time lost” within the definition of
“compensation” in § 3231(e)(1), but it retained the definition of “pay for time lost”
in § 3231(e)(2).
Cowden
,
While BNSF and the Government’s argument that the RRTA should tax what
the RRA uses to calculate benefits makes sense as a statutory scheme, this was
expressly the statutory scheme that existed before the 1983 amendments. We are not
convinced that we should import from the RRA the very language Congress
eliminated from the RRTA. While “under the
in pari materia
canon of statutory
construction, statutes addressing the same subject matter generally should be read as
if they were one law,”
Wachovia Bank v. Schmidt
,
Accordingly, we conclude that the RRTA is unambiguous and does not include
damages for lost wages within the definition of “compensation.” Therefore, the
regulations providing to the contrary receive no deference under
Chevron
, because
“the agency[] must give effect to the unambiguously expressed intent of Congress.”
III. Conclusion
For the foregoing reasons, we affirm both the district court’s decision to grant summary judgment to BNSF on Loos’s FRSA claim and its denial of BNSF’s request for an offset from the lost-wages award.
______________________________
Notes
[1] The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.
[2] The record includes documents relating only to one safety report—a request Loos made in September 2007 for two defibrillators—but Loos testified he frequently filed safety reports and followed up with supervisors about them.
[3] The testimony of two former BNSF employees, Donald Mullins and George Joyce, suggests that BNSF may have stopped allowing the ION code for injury flare- ups after it instituted the attendance policy, possibly because of the belief that classifying such absences as injuries on duty could render them reportable under FRSA as separate incidents of injury on duty.
[4] This court considered Gunderson’s claim earlier this year.
See Gunderson v.
BNSF Ry. Co.
,
[5] Although Loos cites to
Araujo v. New Jersey Transit Rail Operations, Inc.
,
[6] Loos testified, and we assume as true for purposes of summary judgment, that he made other safety reports throughout his employment. However, he does not assert or provide evidence that such reports occurred in close proximity to his firing.
[7] We take as true for purposes of summary judgment Loos’s testimony that one or both of these violations were due to injury flare-ups for which BNSF denied the ION code.
[8] BNSF contends that Loos cannot now challenge his 2011 attendance violations because he admitted the violations and waived formal investigation, and the statute of limitations for such challenge has expired. We need not decide this question, because even if we consider the 2011 violations Loos has not presented sufficient evidence of retaliatory motive.
[9] Loos also emphasizes that the jury verdict in his FELA claim, which awarded damages for pain, disability, and emotional distress for a period including the 2011 violations, confirms that Loos was attempting to take time off because of his injury. However, this does not illuminate BNSF’s intent at the time it disciplined Loos.
[10] BNSF strongly contests this assertion.
[11] We give no consideration to Revenue Ruling 85-97, 1985-