Submitted: September 21, 2016
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
Railway Company ("BNSF") disciplined its employee,
Edward Blackorby, for not promptly reporting a workplace
injury. Blackorby sued, claiming BNSF's discipline
violated the employee-protections provision of the Federal
Railroad Safety Act ("FRSA"), 49 U.S.C. §
20109(a)(4). The case went before a jury, and after the close
of evidence, the jury was instructed that Blackorby need not
establish intentional retaliation to prevail on his claim.
The jury found for Blackorby and awarded him damages for
emotional distress. Because we conclude that this Court's
decision in Kuduk v. BNSF Railway Co., 768 F.3d 786
(8th Cir. 2014), required Blackorby to establish intentional
retaliation and that the jury instructions did not compel
such a finding, we reverse and remand.
worked on a traveling steel gang that repaired and maintained
track for BNSF. While working on a dusty, windy day,
Blackorby began to experience discomfort in his right eye.
After work, Blackorby told a union foreman that he thought
something had entered his eye, and the foreman recommended
saline drops. The drops soothed Blackorby's eye, but it
still felt "scratchy." Two days after the
discomfort began, Blackorby had an unrelated root canal, the
dentist gave him pain pills, and he went home to bed. But
when Blackorby woke up on the third day, he noticed his eye
had begun to swell. And by the fourth day, a Sunday,
Blackorby's eye had significantly worsened. He went to
the only place he thought an eye doctor would be available on
a Sunday: a mall LensCrafters. There, a doctor removed a
small metallic object from the surface of Blackorby's
Rule 1.2.5 of BNSF's Maintenance of Way Operating Rules,
"[a]ll cases of personal injury, while on duty or on
company property, must be immediately reported to the proper
manager and the prescribed form completed." The rule
further provides that "[i]f an employee receives a
medical diagnosis of occupational illness, the employee must
report it immediately to the proper manager."
Accordingly, Blackorby called Assistant Roadmaster Douglas
Turney, a BNSF manager, immediately after the doctor removed
the object from his eye. Blackorby told Turney that an object
entered his eye at work, that a doctor removed the object,
and that he had a follow-up appointment with the doctor the
next day. Turney then relayed this information to James
Sadler, also a BNSF manager. Sadler asked to accompany
Blackorby to his follow-up appointment. Blackorby called his
union representative, and the representative said it would be
fine if Sadler went to the doctor's appointment so long
as Sadler did not go into the examining room or ask for
Blackorby's records. As a result, Blackorby acquiesced to
Sadler's request, but he did not "feel
comfortable" with Sadler coming to his appointment.
next day, Blackorby went to his follow-up appointment and
learned that his eye would be okay. After receiving the good
news, Blackorby walked out to the lobby of the LensCrafters
where Sadler was waiting. According to Blackorby, Sadler
asked him if he wanted to formally report the injury.
Blackorby said he did want to report the injury, but Sadler
"was kind of adamant on [Blackorby] not reporting
it." Sadler told him that Blackorby "didn't
have to say it happened at work, " and that he
"could say it happened at home or . . . say it happened
somewhere else if [Blackorby] felt comfortable with
that." Blackorby asked whether he would "have to go
through an investigation" if he reported the injury.
Sadler said that he "hated investigations, [and]
he'd rather not have them." Nevertheless, Sadler
said "it was up to [Blackorby]" to decide whether
to formally report the injury.
"was pretty upset" about the conversation with
Sadler and called Turney to make clear that he wanted to file
a formal injury report. Although Turney already knew about
Blackorby's injury, Blackorby felt the need to make the
phone call because he "didn't know what
[Sadler's] intention was." During this phone call,
Turney told Blackorby that it would be "late
reporting" if Blackorby reported the injury. Blackorby
felt like Turney and Sadler "were discouraging [him]
days after Blackorby first began experiencing discomfort in
his eye, he filed his formal injury report. Soon after,
Blackorby received a letter informing him that he was being
investigated by BNSF. He "wasn't too happy"
about the letter. He did not think his injury was reported
late because he had immediately told Turney about the injury
after the doctor discovered the metal in his eye. According
to Blackorby, he would have reported the injury the day he
began experiencing discomfort if he had known at the time he
had metal in his eye.
an investigation and hearing, Sadler determined that
Blackorby had violated Rule 1.2.5. Accordingly, Blackorby
received a Level S (Serious), 30-Day Record Suspension and a
one-year probationary period. The effect of this discipline
was that Blackorby faced a 30-day suspension without pay if
he committed another rule violation during the one-year
did not ultimately receive any time off without pay as a
result of his Record Suspension. In the meantime, however,
Blackorby appealed the discipline within BNSF. Blackorby then
filed a complaint with the Occupational Health and Safety
Administration, which issued findings that BNSF violated
Blackorby's rights under the FRSA. These findings were
challenged before an administrative law judge, but while the
challenge was still ...