                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3532
                         ___________________________

                                      Kelly Heim

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                              BNSF Railway Company

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                          Submitted: September 21, 2016
                            Filed: February 27, 2017
                                 ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

MELLOY, Circuit Judge.

       Kelly Heim, a track worker for BNSF Railway Company (“BNSF”), was
seriously injured when a rail rolled onto his foot. BNSF disciplined Heim for alleged
violations of BNSF rules that led to this injury. Heim sued, claiming BNSF’s
discipline violated the employee-protections provision of the Federal Railroad Safety
Act (“FRSA”), 49 U.S.C. § 20109(a)(4). The district court1 granted summary
judgment for BNSF, and we now affirm.

                                           I.

       On the day of his injury, Heim was working as part of a section gang near
Douglas, Wyoming. The section gang was responsible for replacing worn material
underneath the rail. This process, known as “rail seat abrasion,” requires de-clipping
and swinging the rail into the center of the track. The loose rail, however, remains
under tension, and there is a risk that it may roll or tip unpredictably. During a
morning safety briefing, the gang was allegedly warned of this risk and instructed to
remain out of the “danger zone.” The danger zone is the area between the loose and
fixed rail. In this zone, the loose rail could move and pinch a worker against a fixed
rail. Loose rail tends to tip towards fixed rail, but can tip either way. No BNSF rule
directly prohibits employees from stepping into the danger zone, but general BNSF
rules require employees to take precautions to avoid injury.

      At the time of his injury, Heim was responsible for picking up “other track
material” (e.g., clips, spikes, and anchors). BNSF workers pick up these materials
because they may pose a tripping hazard or get “tamped into the ballast.” While
performing this task, Heim noticed a stray rail clip in the danger zone. According to
Heim, the loose rail was sitting flat at the time and did not appear to be moving. He
looked both ways to locate the nearest on-track machines and, believing it was safe
under the circumstances, stepped between the loose and fixed rails to retrieve the clip.
After Heim did so, the loose rail jumped onto his left foot, fracturing it. The rail
pinned Heim’s foot to the ground, but the rail did not pinch him against the fixed
rail—the “danger” typically associated with the danger zone. Heim called out to his


      1
       The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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coworkers for help, and after the rail was finally removed from his foot 30 minutes
later, Heim was transported to the hospital.

       According to Heim, his immediate supervisor, Jim White, pressured him into
filling out a formal personal injury report at the hospital. Heim did not want to fill
out the form at the time because he had taken prescription pain medication. White,
however, “insisted that it needed to be filled out right then and there.” When Heim
filled out the report and checked the box indicating that the injury was caused by the
conduct of another person, White “coached” Heim to change his answer. Heim
acquiesced, scratching out his original answer and indicating that the injury was not
caused by another person. Heim also wrote that he could have prevented the injury
by picking up the clip from the other side of the rail or leaving the clip until he could
retrieve it later.

       One week after Heim’s injury, he received a notice of investigation from
BNSF. The notice requested that Heim attend a hearing to determine “his
responsibility, if any, in connection with [his] alleged failure to comply with
instructions given at the morning briefing and failure to be alert & attentive when [he]
placed his foot in harms [sic] way between the loose rail and fixed rail.” At the
hearing, Heim stated that he believed it was safe to step between the rail under the
circumstances and that he could not have prevented the injury without also failing to
perform his job that day (i.e., remove debris from the track). A BNSF Division
Engineer, Samuel Turnbull, reviewed the transcript from the hearing and determined
that Heim violated BNSF rules requiring employees to be alert, attentive, and careful
to prevent injury. As a result, Heim was given a Level S (Serious), 30-Day Record
Suspension and a one-year probationary period. The effect of this discipline was that
Heim faced a 30-day suspension without pay if he committed another rule violation
during the one-year probationary period. Heim ultimately did not receive any time
off without pay as a result of his Record Suspension.



                                          -3-
       Heim filed suit against BNSF, claiming that its discipline violated the FRSA.
In his discovery deposition, Turnbull testified that he was “probably guilty” of
stepping too close to the loose rail himself, and that “there probably isn’t an
engineering employee out on the track that at one point in time has not either stepped
that close [to loose rail] or seen somebody do it.” Turnbull, however, stated that he
was not aware of any other employee in his “territory” who had been disciplined for
stepping too close to loose rail. He also stated that he had never personally set up an
investigation for such a violation. But, according to Turnbull, Heim’s incident
warranted discipline because it was a “pretty significant event” due to Heim’s injury.

        Additionally, Turnbull, White, and a BNSF corporate representative testified
about a BNSF incentive compensation program. BNSF’s corporate representative
testified that 15% of the compensation program depended upon meeting or exceeding
BNSF goals for reducing injuries reportable to the Federal Railroad Administration.2
The representative further testified that this component of the compensation program
is important to incentivize employees to have “processes, such as [a] safety action
plan . . . that are going to reduce and eliminate injury, pain, and suffering.” Turnbull
testified that his bonus from the compensation program is based on the number of
injuries reported company-wide, not the number of injuries reported under individual
managers. He stated, “I could have zero [injuries] and the next guy could have 10 and
it makes no difference, everybody is going to get the same. But at the local level
you’re also evaluated on your safety and it’s not based off the number of injuries. It’s
based off of what you’re doing to change behaviors, what you’re doing to fix the
environment[.]” Further, Turnbull and White both testified that they had been trained
not to retaliate against employees for reporting injuries, and White testified that he
has witnessed a coworker fired for such retaliation.



      2
        Turnbull testified he was “pretty sure” Heim’s injury was an injury reportable
to the Federal Railroad Administration.

                                          -4-
       The parties filed cross-motions for summary judgment, and the district court
granted judgment to BNSF. The district court reasoned that Heim was required to
demonstrate that BNSF intentionally retaliated against Heim for reporting his injury.
Further, the district court found that Heim failed to produce sufficient evidence of
intentional retaliation. Heim now appeals.

                                            II.

       “We review a district court’s grant of a motion for summary judgment de novo,
viewing all evidence and drawing all reasonable inferences in the light most favorable
to the nonmoving party.” Helmig v. Fowler, 828 F.3d 755, 760 (8th Cir. 2016).
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

       Under the FRSA, “[a] railroad carrier . . . may not discharge, demote, suspend,
reprimand, or in any other way discriminate against an employee if such
discrimination is due, in whole or in part, to the employee’s lawful, good faith act
done . . . (4) to notify, or attempt to notify, the railroad carrier . . . of a work-related
personal injury or work-related illness.” 49 U.S.C. § 20109(a). To establish a prima
facie case under this section, an employee must show “(i) he engaged in a protected
activity; (ii) [the railroad carrier] 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).

       In the present case, Heim contends that he was disciplined for suffering an
injury, not because he stepped near the loose rail. As evidence, he points to
Turnbull’s comments that others have not been disciplined for stepping near loose rail
and that Heim’s injury is what made his violation different. Thus, because Turnbull

                                            -5-
would not have learned about the violation without the injury report and because
there would have been no injury report without Heim’s injury, Heim argues that his
injury report is “inextricably intertwined” with his discipline. According to Heim,
this factual connection, without more, is sufficient to establish the contributing-factor
element of his prima facie case. See Ray v. Union Pac. R.R. Co., 971 F. Supp. 2d
869, 888 (S.D. Iowa 2013) (“Under these circumstances . . . , Plaintiff has
demonstrated a genuine issue of material fact as to whether his protected activity was
a contributing factor in his termination . . . because Plaintiff’s report is inextricably
intertwined with the adverse employment action.” (emphasis added)).

       But this Court has previously held that, under the FRSA’s employee-
protections provision, “the contributing factor . . . an employee must prove is
intentional retaliation prompted by the employee engaging in protected activity.”
Kuduk, 768 F.3d at 791. For the reasons set forth in our opinion issued today in
Blackorby v. BNSF Railway Co., No.15-3192, slip op. at 8–10 (8th Cir. Feb. 27,
2017), we are bound to follow Kuduk. Heim therefore must demonstrate more than
a mere factual connection between his injury report and his discipline in order to
establish a prima facie case under the contributing-factor standard. Heim need not
“conclusively demonstrate [BNSF’s] retaliatory motive” to establish a prima facie
case, but he must demonstrate that BNSF’s discipline was, at least in part, intentional
retaliation prompted by his injury report. See Kuduk, 768 F.3d at 791 (quoting
Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010)).

       Viewing the evidence in the light most favorable to Heim, we conclude that no
reasonable factfinder could conclude that Heim’s supervisors intentionally retaliated
against him for filing his injury report. To start, there is no dispute that White
requested Heim submit a formal injury report. On the contrary, Heim contends that
White pressured him to fill out the report. The remaining evidence, moreover, is
insufficient to suggest that Turnbull intentionally retaliated against Heim. While the
Kuduk court “acknowledge[d] that the more lenient ‘contributing factor’ standard will

                                          -6-
increase to some extent the probative value of temporal proximity,” it also “reject[ed]
the notion . . . that temporal proximity, without more, is sufficient to establish a prima
facie case” under the FRSA. Id. at 792. We conclude that BNSF’s compensation
program is insufficient, by itself, to provide the “more” necessary for Heim’s claim
to survive summary judgment; the record demonstrates that bonus calculations are
based on a company-wide reduction of reportable injuries and not based on reportable
injuries under individual managers like Turnbull. And Turnbull’s alleged admission
that the rules were selectively enforced against Heim is likewise insufficient.
Although Turnbull admitted that most employees have probably stepped too close to
loose rail and were not disciplined, we agree with the district court that, unless they
were injured like Heim, their violations most likely “would have gone unnoticed.”
Therefore, without more specific evidence of an improper retaliatory motive, we find
that Heim failed to establish his prima facie case.

                                           III.

      The judgment of the district court is affirmed.
                     ______________________________




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