Federal Railroad Safety Act (FRSA) (49 USC § 20101 et seq.); Claim that plaintiff was fired from his job in retaliation for reporting a workplace injury in good faith; §§ 20109(a)(4) & (d)(1); Gunderson v. BNSF Ry. Co. (8th Cir.) § 20109(d)(3); Motions for summary judgment; Anderson v. Liberty Lobby, Inc.; Lujan v. National Wildlife Fed’n; Viet v. Le; Gardner v. Evans; Fed.R.Civ.P. 56(e)(4); Parker v. Winwood; Chain-of-events theory of causation; Koziara v. BNSF Ry. (7th Cir.); BNSF Ry. Co. v. U.S. Dep’t of Labor (10th Cir.)

The court affirmed summary judgment for defendant-Norfolk on plaintiff-Lemon’s retaliation claim brought under the FRSA’s “kick-out” provision because the record showed that Norfolk discharged him not for reporting an injury but rather for “making false statements” about how and where he was injured, a dischargeable offense at Norfolk. The parties agreed “that Lemon must show that his injury report was a ‘contributing factor’ in the railroad’s decision to fire him, and Lemon cannot prevail if the railroad would have fired him anyway.” The court held that Lemon’s injury report was not a contributing factor in Norfolk’s decision to fire him, noting that Norfolk’s investigation and hearings all concerned the false statements. Lemon charged that Norfolk had “cook[ed] up” the false-statement explanation as a pretext for retaliation, but the court rejected this argument where Lemon only offered “vague, conclusory statements” to support his contention, and where any evidence he offered was inadmissible hearsay. Also, there was evidence that Norfolk “regularly enforced its policy against making false statements.” The court further rejected his argument that “his injury report was a contributing factor in the railroad’s decision to fire him because, without the injury report, he would not have lied to his supervisor about speaking to others and, without that falsehood and others discovered later, he would not have been fired.” It found that there were two problems with this. First, it was “hard to think of any event in a person’s life that could not be viewed as a contributing factor under this theory.” Second, “it would authorize employees to engage in banned behavior so long as it occurs during protected conduct.”