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Fink v. BNSF Ry. Co.

2022 WL 22905243 (D.N.D. 2022)

September 16, 2022

Hochhalter, Clare R., United States Magistrate Judge

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Summary

The court granted the plaintiff's motion to compel discovery of comparator information and leniency status reports from the defendant, BNSF Railway Company, in a whistleblower case. The court found that the requested information was relevant to the plaintiff's claim and ordered BNSF to produce it.

Michael Fink, Plaintiff,
v.
BNSF Railway Company, a corporation, Defendant

Case No. 1:20-cv-222

United States District Court, D. North Dakota

Filed September 16, 2022

Hochhalter, Clare R., United States Magistrate Judge

ORDER

*1 Plaintiff Michael Fink filed a “Motion to Compel Discovery on Additional Comparators.” (Doc. No. 18). Plaintiff asks this Court to require Defendant BNSF Railway Company (“BNSF”) to produce comparator information for employees charged with the same general rule violation. Plaintiff also asks this Court to require Defendant to produce leniency status reports for other employees. For the reasons articulated below, the motion (Doc. No. 18) is GRANTED.

I. BACKGROUND

Plaintiff Fink brought claims against BNSF following the termination of his employment under the Federal Railroad Safety Act (“FRSA”). Fink worked in the Twin Cities Division of BNSF. Fink argues he engaged in statutorily protected whistleblower activities and those activities formed the basis for his termination in violation of 49 U.S.C. § 20109. BNSF disagrees and asserts it terminated Fink because he was dishonest.

BNSF's General Code of Operating Rules (“GCOR”) lists many requirements for its employees. Rule 1.6 concerns an employee's conduct and states,

Employees must not be:

1. Careless of the safety of themselves or others.
2. Negligent.
3. Insubordinate.
4. Dishonest.
5. Immoral.
6. Quarrelsome. or
7. Discourteous.
Any act of hostility, misconduct, or willful disregard or negligence affecting the interest of the company or its employees is cause for dismissal and must be reported. Indifference to duty or to the performance of duty will not be tolerated.

(Doc. No. 19-3).

BNSF previously produced spreadsheet information regarding employees in the Twin Cities Division who were investigated due to violations of Rule 1.6(4) for three years before and up to the investigation of Fink. Fink now requests BNSF to produce comparator data within its Employee Performance Tracking System from two categories. First, Fink requests comparator data of employees charged with violating Rule 1.6 regardless of subsection and the disciplinary action taken. Second, Fink requests data on employees who were granted leniency under BNSF policies, despite receiving multiple serious rule violations (“Level-S violations”) for violating Rule 1.6.

II. LEGAL STANDARD

A. Scope of Discovery

Rule 26(b)(1), Fed. R. Civ. P., defines the scope of discovery as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

However, the Court, in its discretion, may limit discovery otherwise allowed by the rules if:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
*2 (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Fed. R. Civ. P. 26(b)(2)(C). In order to prevent fishing expeditions, “Some threshold showing of relevance must be made before the parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

B. FRSA Claims

To prevail on his FRSA claim Fink must,

establish a prima facie case by showing (i) he engaged in a protected activity; (ii) BNSF knew or suspected, actually or constructively, that he engaged in the 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.

Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014). However, BNSF is not liable if it “demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of [Fink's] protected activity.” Id. (internal citation and quotation omitted).

To establish a retaliatory motive under the fourth element, a court will consider circumstantial evidence “in the absence of direct evidence.” Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018). This circumstantial evidence can include, “the temporal proximity between the protected activity and the adverse action, indications of pretext such as inconsistent application of policies and shifting explanations, antagonism or hostility toward protected activity, the relation between discipline and the protected activity, and the presence of intervening events that independently justify discharge.” Id.

The Eighth Circuit has previously said, “A plaintiff may show pretext, among other ways, by showing that an employer (1) failed to follow its own policies, (2) treated similarly-situated employees in a disparate manner, or (3) shifted its explanation of the employment decision.” Lake v. Yellow Transp., Inc., 596 F.3d 871, 875 (8th Cir. 2010) (explaining pretext when a plaintiff sued his employer for alleged race discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964). To meet the second prong, “[t]he plaintiff must show that the other employee is similarly situated in all relevant respects, including that he or she dealt with the same supervisor, had been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Dafoe v. BNSF Ry. Co., 164 F.Supp.3d 1101, 1110 (D. Minn. 2016).

III. DISCUSSION

Here, neither party has filed a dispositive motion and the case has not reached the stage of trial. Fink does not need to make any showing that he will prevail on his FRSA claim, and the information he requests “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Rather, Fink must show the information is relevant to his claim and proportional to the needs of the case. Id. Fink has met that burden.

A. Rule 1.6 Comparator Data

*3 Fink requests comparator information for employees charged with a violation of Rule 1.6, regardless of subsection, in the Twin Cities Division. The Court finds the information is relevant to Fink's claim and proportional to the needs of the case because it could potentially support the fourth element by showing pretext. A person similarly situated to Fink could potentially have been disciplined under a different subsection of Rule 1.6 for conduct that involved dishonesty. As a result, BNSF shall produce the comparator information requested by Fink. This information must include comparator information for employees within the Twin Cities Division charged with a violation of Rule 1.6, regardless of subsection.

B. Level-S Comparators

Fink also requests comparator information for employees charged with a Level-S violation and subsequently granted leniency when charged with another violation. Fink claims BNSF possesses this information in the form of leniency status reports and has explicitly refused to provide the reports. BNSF argues it has already produced comparator information which includes disciplinary information. As demonstrated by the exhibits Fink filed, the leniency information is easily accessible to BNSF. This information is relevant to Fink's claim as it will allow him to review whether a similarly situated person was ultimately treated and disciplined differently by BNSF for a similar GCOR violation on multiple occasions. BNSF shall produce the leniency status reports for employees charged with violating Rule 1.6 in the Twin Cities Division.

IV. CONCLUSION

The Court GRANTS Plaintiff's motion (Doc. No. 18). BNSF is ordered to produce all comparator information for employees within the Twin Cities Division charged with a violation of Rule 1.6, regardless of subsection. BNSF is also ordered to produce the leniency status reports for employees within the Twin Cities Division charged with violating Rule 1.6 on multiple occasions

IT IS SO ORDERED.

Dated this 16th day of September, 2022.