September 18, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 C 7962 - John
Robert Blakey, Judge.
Bauer, Flaum, and Sykes, Circuit Judges.
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
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.
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.
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.
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.
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.
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.
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
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