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Gunderson v. BNSF Railway Co.

United States Court of Appeals, Eighth Circuit

March 10, 2017

Paul Gunderson Plaintiff- Appellant
BNSF Railway Company Defendant-Appellee

          Submitted: October 19, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

          LOKEN, Circuit Judge.

         Paul Gunderson appeals the district court's[1] grant of summary judgment dismissing his complaint alleging that BNSF Railway Co. violated the Federal Rail Safety Act ("FRSA"), 49 U.S.C. § 20109, when it fired Gunderson in 2009 for harassing a co-worker and threatening a supervisor. Gunderson alleges that the real reason for his termination was unlawful retaliation for his prior FRSA-protected activity, an injury report and years of safety advocacy. A Department of Labor ("DOL") administrative law judge ("ALJ") dismissed Gunderson's FRSA complaint on the merits following extensive discovery and a six-day evidentiary hearing. Gunderson then filed this de novo action under the FRSA's "kick-out" provision, 49 U.S.C. § 20109(d)(3). The district court denied BNSF's motion to dismiss but, at the end of discovery, granted BNSF summary judgment on the merits and dismissed Gunderson's complaint with prejudice. Reviewing the grant of summary judgment de novo, we affirm.[2]

         I. Background.

         A. The Disciplinary Backdrop.

         Gunderson worked for BNSF at its yard in Willmar, Minnesota, as a brakeman, conductor, switchman, and remote-control operator, from 1989 until BNSF terminated him in August 2009 for harassing and intimidating a co-worker and threatening a supervisor. Gunderson was active in Local 1177 of the United Transportation Union ("UTU"), becoming local chairman for the Willmar Yard in 2005, and also serving as vice general chairman of the international union. His union duties included representing fellow workers in Willmar accused of rules violations. After Michael Babik became Superintendent of Operations in Willmar in 2008, Gunderson and Babik met almost weekly regarding labor-management issues, causing tension at times.

         In March 2009, two Willmar co-workers, Mitchell Duke and Robert Cluka, complained that yardmaster David Peterson had improperly obtained and published their personnel information. BNSF served Peterson with a Notice of Investigation. When Gunderson told Babik he was thinking of representing Peterson, Babik allegedly said, "stay away from this . . . if you get involved you could be next." Gunderson believed that Babik was angry because Gunderson and another union official, Steve Mace, "keep beating the carrier" in investigations.

         B. First Investigation of Gunderson.

         In May 2009, Local 1177 president Doug Campen informed Babik that Gunderson and Mace were pressuring union members Duke and Cluka to recant their allegations against Peterson. Campen said Gunderson had used "intimidation and scare tactics, " telling Duke he should be "very nervous." Campen also said that Mace had asked Cluka to withdraw his statement against Peterson. Babik immediately notified his supervisor, Twin Cities Division General Manager Richard Ebel, who obtained written statements from Duke, Cluka, and Campen.

         Duke's statement accused Gunderson of saying that "things could get really bad" if Duke did not withdraw his accusations against Peterson -- Duke could face a lawsuit by Peterson and could be fired. Gunderson also advised that Duke could get a large settlement from BNSF over a previous injury if Duke "played his cards right." Gunderson invited Duke to his house, where Gunderson gave Duke a letter to sign recanting his allegations against Peterson. Duke reported that someone had placed garbage in his pickup truck and filled its gas tank with diesel. Duke stated, "I am concerned for my safety at work, I'm afraid there will be retaliation by other union members and Gunderson." Cluka's statement alleged that he encountered Mace in a grocery store, asked for general advice about serving as a witness in a disciplinary hearing, and was asked by Mace to recant his accusation against Peterson.

         Based upon these statements, Ebel decided to investigate Gunderson and Mace for violating Rule 1.6 of BNSF's General Code of Operating Rules[3] and its Violence in the Workplace Policy, which prohibits threatening behavior, including "verbal, nonverbal, or written threats or intimidation, explicit or subtle." Before proceeding, Ebel contacted James Hurlburt, director of employee performance, who was in charge of reviewing BNSF disciplinary actions nationwide to ensure consistent application of the company's Policy for Employee Performance and Accountability (PEPA). Hurlburt, stationed in Fort Worth, Texas, had no prior contact with Gunderson. He recommended initiating an investigation and removing Gunderson from service due to the "egregious" level of harassment alleged, and because of the "incredibly unusual" situation presented by a union president bringing to management a complaint against a union member. Milton Siegele, in BNSF's labor relations department, concurred. With the approval of his supervisor, Ebel then issued Notices of Investigation to Gunderson and Mace and withheld both from service pending the investigations.

         C. Second Investigation.

         Ebel directed Willmar Terminal Manager Herbert Beam to serve Gunderson with the Notice of Investigation and ordered BNSF resource protection officers to be present because of the volatile situation at the Willmar Yard. Officers Eric Collins and Scott Poundstone, who had never heard of Gunderson or his protected activities, traveled to Willmar and waited across the hallway from Beam's office, out of sight but where they could hear the conversation, while Beam delivered the Notice to Gunderson. After receiving the Notice, Gunderson told Beam, "Herb, you know, I'm not just a local [union] chairman. . . . Sometimes things can come back to hurt you." When Beam returned to his office after escorting Gunderson from the building, the security officers said he needed to write a statement describing what they regarded as a threat by Gunderson. Beam sent an email describing the incident to Babik and Ebel, and Ebel received a formal report from Collins and Poundstone confirming Beam's account. Steven Klug, Senior Vice President of Human Resources, read this description and concluded it warranted additional investigation as an "intentional attempt to intimidate and threaten." Hurlburt and Siegele advised this was a serious event warranting separate investigation. Ebel served a second Notice of Investigation.

         D. Disciplinary Hearings.

         BNSF's collective bargaining agreement with UTU provided that the company must prove disciplinary violations at a formal adversarial hearing. At a meeting to prepare for Gunderson's separate hearings, one officer noted, "we above all want Gunderson, " referring to the seriousness of his alleged misconduct, compared to Mace's. The first hearing, on August 12, 2009, concerned Gunderson's alleged harassment of Duke. Witnesses included Gunderson, Campen, Duke, Babik, Peterson, and Mace. Gunderson denied harassing Duke, claimed that Duke approached him asking for help in recanting, but admitted that he delivered the recantation letter to Duke as a favor to Peterson's attorney. Duke testified, consistent with his written statement, that Gunderson pressured him to recant on multiple occasions, and that he suffered panic attacks and dreaded coming to work as a result of the harassment. The second hearing, concerning the alleged threat against Terminal Manager Beam, was held the next day. Beam, Collins, and Poundstone testified that Gunderson told Beam that the investigation could come back to hurt Beam, and each testified that he interpreted this as a threat. Gunderson testified that he could not remember whether or not he made the statement to Beam. After each hearing, the hearing officer sent the transcript and record to Ebel for a decision whether BNSF had proven each of the alleged disciplinary violations.

         E. ...

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