• August 3, 2015

BNSF_7520_GE_ES44DC_in_Mojave_DesertUpdate (August 3, 2015): In a 33-page decision, U.S. District Court Judge Patrick J. Schiltz (D. Minn.) went along with all of the findings and conclusions of Plaintiff Gunderson’s previous administrative proceedings, all of which held that BNSF fired Gunderson for harassing a co-worker and threatening another. He would have been fired for these actions regardless of whether BNSF also wanted to get rid of him for being “an outspoken safety advocate,” Judge Schiltz concluded.

Judge Schiltz held that “no reasonable jury could find that BNSF’s decision to fire Gunderson was motivated by hostility to his protected activity.”

Really? If you read the 33-page opinion, believing all of Gunderson’s evidence and making “all justifiable inferences in his favor,” there is still no way a “reasonable jury” could find for him?

Perhaps a jury could look at the evidence in this case and conclude that Paul Gunderson’s immediate supervisors in BNSF’s Willmar railyard, Beam and Babik, despised Gunderson for his history of being a “safety bulldog” and that they enlisted the help of their Minneapolis based supervisor, Ebel, to run Gunderson out of town on trumped up charges? Perhaps Beam and Babik’s antipathy for Gunderson was widely known among others at the Willmar site? Isn’t an excellent way to curry favor with one’s bosses to help them eliminate their enemies, which could explain the BNSF witnesses arrayed to testify against Gunderson?

This, however, is the stuff of conspiracy theories; it is not the type of evidence that defeats a summary‐judgment motion,” Judge Schiltz seems to have concluded.

This reminds me of a favorite aphorism of mine, “Just because I am paranoid does not mean no one is out to get me.” Put another way, “Just because a theory of what happened includes speculation does not mean the speculation is wrong.”

Put yet another way, in a case of alleged bureaucratic beheading, could one’s sense of what are “justifiable inferences” from the evidence hinge on subtle points of witness credibility, finely drawn judgment calls, and the varied experiences of the fact-finders? In other words, shouldn’t a jury decide?

Judge Schiltz seems to place great emphasis on Gunderson’s serial losses in the administrative proceedings, the “PEPA board,” the “PLB,” and “OSHA.” But, as attorney David Schlesinger points out in his comment below (and as Judge Schiltz recognizes in his opinion at footnote 5, page 17) there are procedural safeguards in federal court that are not present in these other contexts. In fact, should the results of the administrative proceedings be relevant at all in the federal action? Isn’t the case considered “de novo” (that is, without any regard to the results of the administrative proceeding)?

Original post (August 1, 2014) (under the headline, “Are Railroads Being Railroaded”): The BNSF railroad terminated an employee, Paul Gunderson, in 2009. The railroad claimed to be firing Gunderson because he allegedly threatened and harassed a fellow employee.

Gunderson, however, argues that he was fired for reporting safety violations and the like –that is, Gunderson said he was fired because he was a whistleblower.

Gunderson made this claim before an administrative law judge, undertook discovery, and had a trial over several days, with witnesses and trial exhibits. And Gunderson lost.

So he sued BNSF all over again in U.S. District Court for the District of Minnesota. Can he get away with that?

Apparently he can.

The railroad sought to dismiss Gunderson’s lawsuit saying that he waived his right to bring the lawsuit when he went along as far as he did with the administrative proceeding.

The railroad lost in that effort and, this week, the railroad lost in a follow-up effort to halt the district court case and get an “interlocutory appeal” (that is, to get appellate review before the case reaches final judgment at the trial court level).

U.S. District Court Judge Patrick J. Schiltz (D. Minn.) expressed sympathy for the railroad’s predicament. But, he reasoned, the court looks to the legislation, the statute, and it appears to allow the plaintiff to have another bite at the proverbial apple and that is the end of that.

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