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Armstrong v. BNSF Railway Co.

United States Court of Appeals, Seventh Circuit

January 18, 2018

Glen Armstrong, Sr., Plaintiff-Appellant,
v.
BNSF Railway Company, d/b/a The Burlington Northern Santa Fe Railway Company, Defendant-Appellee.

          Argued September 18, 2017

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 7962 - John Robert Blakey, Judge.

          Before Bauer, Flaum, and Sykes, Circuit Judges.

          Bauer, Circuit Judge.

         After he was fired, Glen Armstrong sued his former employer, BNSF Railway Company (BNSF), under the Federal Rail Safety Act, 49 U.S.C. § 20109 et seq. (FRSA), alleging unlawful retaliation. The case proceeded to trial, and a jury returned a verdict in favor of BNSF. Armstrong appeals, contending that an improper jury instruction misled the jury We affirm.

         I. BACKGROUND

         On May 4, 2010, Armstrong was working as the conductor on a BNSF Metra line train that arrived at Union Station in Chicago at approximately 5:30 p.m. Armstrong's supervisor, Chris Motley, was sitting in the "Glasshouse, " an office in Union Station with windows looking onto the tracks, and saw Armstrong exit the train and stand on the platform. Motley noticed that Armstrong was not wearing the proper uniform for the third time in two weeks and called him on the radio to tell him to come to the Glasshouse.

         BNSF Metra trains are equipped with on-board video cameras, one of which was positioned so as to capture images of the door to the Glasshouse, the ramp leading to that door, and partial views of the inside of the Glasshouse, including Motley's desk, through a window. The video camera captured Armstrong walking up the platform and entering the Glasshouse. John Nelson, another conductor, was also in the Glasshouse when Armstrong entered, but left approximately 30 seconds later.

         At trial, Armstrong testified that when he entered, Motley began yelling at him about his uniform. He stated that he tried to leave because he felt threatened by Motley's behavior. According to Armstrong, when he tried to go back through the door, Motley pushed it shut, striking his left knee and foot. Armstrong admitted that this could not be seen on the video recording, but noted that there were approximately nine seconds of the video during which neither Armstrong nor Motley could be seen. He said he did not feel pain initially, but a short time later, he felt tingling and throbbing that continued to worsen.

         BNSF presented a different story at trial. Nelson testified that when he exited the Glasshouse, he could hear Armstrong curse and yell at Motley. Nelson heard Armstrong say that he refused to talk to Motley until his union representative arrived. At that point, Motley told Armstrong that he was being removed from service for insubordination. Armstrong then left the Glasshouse. BNSF showed the video recording at trial, which showed Motley standing some distance from the door as Armstrong exited. According to Motley, that distance was approximately 10 to 12 feet, and he testified that he did not push the door shut on Armstrong as he left.

         Once Armstrong left the Glasshouse, Motley called his supervisor, Clayton Johanson, to inform him that Armstrong had been removed from service for insubordination. Johanson immediately went to Union Station to address the situation. Johanson spoke with Motley in the Glasshouse, then asked Armstrong to write out a statement about what happened. Armstrong wrote that Motley slammed the door on his leg, smashing his knee and ankle. Johanson then took Armstrong to a clinic on site where he was provided a soft walking shoe.

         Johanson called his supervisor, Timothy Merriweather, to inform him of the incident, who in turn informed the General Manager, Matthew Igoe. Igoe reported the incident to Duncan Brown, the Director of Human Resources. On May 5, 2010, the day after the incident, Brown interviewed and took statements from Nelson, Motley, and Johanson. He also secured the video recording, which both he and Igoe reviewed. Brown and Igoe both testified at trial that, based on their review of the video, they believed Motley could not have slammed the door on Armstrong's leg and that the incident could not have occurred the way Armstrong described it in his statement.

         Pursuant to the United Transportation Union's collective bargaining agreement with BNSF, Armstrong was entitled to an investigation hearing prior to the assessment of any formal discipline. On May 13, 2010, BNSF issued Armstrong a notice of investigation for insubordination, dishonesty, and misrepresentation.

         After numerous continuances, BNSF conducted an investigation hearing on March 25, 2011. Terminal Superintendent Randy McMahan served as the conducting officer. The local union chairman represented Armstrong at the hearing. Merriweather presented the evidence, including the video recording, on behalf of BNSF. Armstrong testified on his own behalf, but did not call other witnesses or present any other evidence. Based on the presentations at the hearing, McMahan concluded ...


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