By Michael Cork, Esq.
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In September of 2010, Koziara was supervising a crew that was removing and replacing "crossing planks," which are large pieces of timber installed at railroad crossings to allow vehicles to drive over the tracks. While his crew was using a front-end loader fitted with a forklift to remove the planks, one of the timbers accidentally struck Koziara, who entered the work area at a questionable time. Koziara was diagnosed with a fractured tibia, filed an injury report, and BNSF paid his medical expenses. And that is when things became interesting.
BNSF investigates reported injuries by staging reenactments of accidents to determine the cause of the injury. The reenactment of Koziara's injury resulted in BNSF finding that he was careless in entering the work area while the planks were being removed. But BNSF did not contest paying Koziara's medical expenses. Instead, BNSF decided to punish Kosiara by suspending him for 30 days. But one week after the "reenactment" of the injury, one of the crew members Koziara had been supervising told Koziara's supervisor that Koziara may have been injured a week earlier while removing railroad ties from railroad property.
So another investigation was initiated based on the theft allegation. Koziara first claimed he intended to give the ties to a friend who operated a farm. And he claimed his supervisor gave him permission to take the ties. But Koziara's supervisor denied that claim and BNSF noted that railroad ties are treated with "creosote," a chemical considered hazardous by the EPA. Railroad ties are not intended for residential or farming purposes and such use is not permitted by the EPA. Moreover, BNSF pointed out that Koziara would have known that information based on his extensive experience as a track foreman. Based on the theft, BNSF terminated Koziara.
Ultimately, Koziara filed suit against BNSF under the Federal Railroad Safety Act, which forbids discharging or otherwise discriminating against an employee for filing a work-related injury report. 49 U.S.C. § 20109(a), (a)(4). Koziara claimed BNSF terminated him in retaliation for filing an injury report--a report BNSF advised him to file. Koziara went to trial and won a jury verdict awarding him damages.
BNSF appealed to the 7th Circuit Court of Appeals in Chicago (the federal appellate court for the states of Wisconsin, Illinois, and Indiana). BNSF argued that Koziara presented no evidence of retaliation against him because he filed an injury report. Instead, claimed BNSF, Koziara was terminated based on information acquired after his injury, during the company's "reenactment" investigation of that injury.
Several years ago, the U.S. Supreme Court found that, “once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer.” McKen-non v. Nashville Banner Publishing Co., 513 U.S. 352, 362 (1995). Such information is known as "after-acquired evidence." And the Court's holding applies to information acquired in the course of some other procedure, including an injury investigation.
The panel of three appellate judges at the 7th Circuit agreed with BNSF. Their opinion states, in relevant part, that Koziara's claim of retaliation for filing an injury report has no support in the evidence. Instead, the evidence supports BNSF's claim that Koziara was terminated for theft of company property. Accordingly, the 7th Circuit reversed the trial court judgment and instructed the trial court to dismiss Koziara's suit.
This information is not intended to provide legal advice regarding any specific situation. Please contact the author or attorney of your choice for specific advice.