Today, the U.S. District Court for the District of Nebraska dismissed a railroad conductor’s retaliation claim. The conductor had reported an injury that he claimed stemmed from a specific incident occurring about 18-months before his report to his employer, the railroad. The railroad disciplined the conductor for late reporting and other violations of the General Code of Operating Rules. The conductor claimed he was retaliated against for reporting a work-related personal injury in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109(a)(4).

To recover on his retaliation claim, the conductor was required to show that “(i) he engaged in protected activity; (ii) [the railroad] knew or suspected, actually or constructively, that he engaged in protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.” The “contributing factor” element of his claim required him to produce evidence that his discipline was “at least in part” “intentional retaliation prompted by [him] engaging in protected activity.” The Court found the conductor failed to offer evidence of intentional retaliation by the railroad or its decisionmakers.

In support of its motion to dismiss the claim, the railroad offered evidence of numerous policies (1) requiring employees to immediately report personal injuries, (2) prohibiting retaliation against employees, and (3) providing employees a fair and impartial investigation and hearing prior to imposing discipline. The Court concluded that “no reasonable fact-finder” could find that the railroad disciplined the conductor for reporting his injury. Instead, the evidence established that the railroad disciplined the conductor because he “late-reported his injury in violation of numerous [railroad] employment plans, rules, and policies.” Without evidence creating an inference of “retaliatory motive” on the part of the railroad, the conductor’s claim failed.

Congratulations to Partner Nichole Bogen on this summary judgment!

Neylon v. BNSF Railway Co., 4:17-cv-03153-RGK-SMB (Dist. Neb. September 4, 2019) (appeal pending)