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Blackorby v. BNSF Railway Co.

United States Court of Appeals, Eighth Circuit

February 27, 2017

Edward Blackorby Plaintiff- Appellee
BNSF Railway Company Defendant-Appellant Secretary of Labor Amicus on Behalf of Appellee

          Submitted: September 21, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

          MELLOY, Circuit Judge.

          BNSF 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.


         Blackorby 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 cornea.

         Under 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.

         The 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.

         Blackorby "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] from reporting."

         Six 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.

         After 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 probationary period.

         Blackorby 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 ...

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