                  United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3326
                        ___________________________

                                  Thomas F. Kuduk

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                             BNSF Railway Company

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: June 12, 2014
                               Filed: October 7, 2014
                                   ____________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

      The Federal Rail Safety Act (“FRSA”) prohibits rail carriers from retaliating
against employees who engage in safety-related protected activities. 49 U.S.C.
§ 20109(a). Brakeman Thomas Kuduk, a long-time employee of BNSF Railway Co.
(“BNSF”), commenced this action alleging that BNSF violated this anti-retaliation
mandate when it terminated him in September 2010. He now appeals the district
court’s1 grant of summary judgment dismissing his FRSA claim. Reviewing the
court’s decision de novo and the facts in the light most favorable to Kuduk, we affirm.

                                          I.

       After a long history of good work performance, Kuduk committed a Level S
(Serious) safety violation in December 2009. He accepted responsibility for causing
a car to derail and agreed to discipline consisting of a 30-day record suspension and
one year of probation. The Investigation Waiver provided that “[a]ny rules violation
during this probation period could result in further disciplinary action.” BNSF’s
Policy for Employee Performance Accountability provided that “Dismiss[i]ble
Violations” include two serious rule violations within a twelve-month review period
for an employee with a good safety and discipline record.

      On June 9, 2010, two supervisors, Trainmaster Greg Jaeb and Larry Mattison,
observed Kuduk walking between the rails of Track 190 near Hinckley, Minnesota.
Walking between the rails, or “fouling the tracks” as it is called in the industry, is
permitted only in limited situations. BNSF’s Train Yard & Engine Safety Rules,
echoing the requirements of 49 C.F.R. § 214.313(b)-(c), instruct: “Do not walk
between rails or foul the track, except when duties require and proper protection is
provided.” Violating this rule is a well-recognized serious safety violation. BNSF
designates it one of the “Eight Deadly Decisions” and a Level S violation.

      Mattison and Jaeb reported the violation, and an investigation ensued, with the
union representing Kuduk. After Kuduk rejected a negotiated settlement, a formal
hearing before the Superintendent of Operating Practices for the Twin Cities Division
took place on September 8, 2010. Kuduk testified that he was walking between the


      1
       The Honorable Michael J. Davis, Chief Judge of the United States District
Court for the District of Minnesota.

                                         -2-
rails to retrieve and re-attach a rear end device, a task included in his job duties as a
brakeman. He contended that he was required to walk on the track because the
Training Coordinator’s Manual required him to “always take the safe course” and
walking on the ballast alongside the track was unsafe due to uneven terrain. He
argued his movements were protected because he lined nearby tracks and applied
handbrakes to train cars in the vicinity. Jaeb and Mattison testified that they did not
see Kuduk performing any work duty, and that he complained about walking
conditions on the ballast, apologized for walking on the track, and asked for leniency.

       The hearing transcript and exhibits were provided to Richard Ebel, General
Manager of BNSF’s Twin Cities Division. Ebel reviewed the evidence and Kuduk’s
personnel record, including the December 2009 S-Level violation, and determined that
dismissal was appropriate after consulting with Jim Hurlburt from BNSF labor
relations. The discharge was approved by regional vice president Sanford Sexhus.
Kuduk was dismissed on September 17. After the discharge, the union and BNSF
continued negotiations, eventually agreeing that Kuduk would be “available for
service” and receive agreed employee benefits through June of 2011 and would retire
thereafter with full benefits.

                                           II.

      The FRSA provides that a rail carrier “may not discharge . . . or in any other
way discriminate” against an employee because he lawfully and in good faith
provided information relating to, or directly assisted investigation of, conduct the
employee reasonably believed violated a Federal law relating to railroad safety, or for
“reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C.
§§ 20109(a)(1) and (b)(1)(A). The statute provides that an employee may obtain de




                                          -3-
novo review of a retaliation claim in federal court after exhausting administrative
remedies. § 20109(d)(3).2

        In March, 2011, Kuduk filed a complaint with the Department of Labor alleging
that his discharge was motivated, at least in part, by two complaints he made in the
months preceding discharge that constituted safety reports protected by the FRSA.
First, he complained to union representative Mike Wold, a member of BNSF’s safety
committee, that Trainmaster Jaeb unfairly conducted a “banner test” on May 17, 2010.
A banner test ensures that trains are able to stop within the range required by the
General Code of Operating Rules. During a banner test, the examiner waves a flag
and the crew must bring the train to a complete stop within a certain distance.
Kuduk’s crew passed the test, but Kuduk objected that Jaeb had not fully unfurled the
flag. Wold raised Kuduk’s concern at a May 19 safety committee meeting; the
committee concluded the test was fine because “any object waved violently is a sign
to stop.” Ebel was present at this meeting.

       Second, on May 24, 2010, invoking BNSF’s Safety Issue Resolution Process
(“SIRP”), Kuduk complained that a flop-over handle used to derail cars was too heavy
and could cause employee back injuries; he suggested the handle be replaced.
Assigned to investigate the issue, Jaeb concluded that the handle met safety
requirements and that BNSF was not responsible for the equipment because it was on
the property of the railroad’s customer. The SIRP inquiry was closed on September
21, four days after Kuduk’s discharge.

       When the Department of Labor did not issue a final decision within 210 days
after Kuduk filed his complaint, he commenced this action. To prevail, he must
establish a prima facie case by showing (i) he engaged in a protected activity; (ii)


      2
       See generally Procedures for the Handling of Retaliation Complaints under the
Federal Railroad Safety Act, 75 Fed. Reg. 53,522, 53,524 (Aug. 31, 2010).

                                         -4-
BNSF 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.
See 49 U.S.C. § 42121(b)(2)(B)(i); 29 C.F.R. § 1982.104(e)(2). If Kuduk makes this
showing, BNSF is nonetheless not liable if it “demonstrates, by clear and convincing
evidence, that [it] would have taken the same unfavorable personnel action in the
absence of [Kuduk’s protected activity].” § 42121(b)(2)(B)(ii).

                                         III.

       The district court granted BNSF’s motion for summary judgment, concluding
that Kuduk failed to present a prima facie case of unlawful retaliation and,
alternatively, that BNSF has shown by clear and convincing evidence that it would
have discharged Kuduk even in the absence of protected activity. Kuduk v. BNSF
Ry., 980 F. Supp. 2d 1092, 1102 (D. Minn. 2013). Kuduk appeals both rulings.

       A. Kuduk’s Prima Facie Case. In concluding Kuduk failed to present a prima
facie case, the district court first ruled that his report to union representative Wold
concerning the banner test was not protected activity because Wold was not a “person
with supervisory authority over the employee or [a] person who has the authority to
investigate, discover, or terminate the misconduct,” 49 U.S.C. § 20109(a)(1)(C).
Kuduk, 980 F. Supp. 2d at 1099. On appeal, Kuduk attacks this ruling on two distinct
grounds. We conclude that we need not consider these issues because we agree with
BNSF that Kuduk’s complaint to a union representative that Trainmaster Jaeb had
unfairly conducted the banner test was not a report of a hazardous safety condition.
Kuduk himself testified that his objection to the test was that it was inappropriately
and unfairly conducted, not that the way Jaeb conducted the test created a hazardous
safety condition.




                                         -5-
        The district court next ruled that Kuduk’s report of an overweight derail handle
presented an issue of fact as to whether he had engaged in an activity protected by
§ 20109(b)(1)(A). 980 F. Supp. 2d at 1099-1100.3 Though BNSF argues to the
contrary on appeal, the summary judgment record supports this ruling. Kuduk
testified that he made the report because he “was concerned that someone could hurt
their back in trying to lift [the handle],” and the SIRP records would permit a
reasonable jury to find that BNSF understood Kuduk’s complaint regarding the handle
to be, at bottom, a safety report.

        However, the district court concluded, Kuduk failed to establish a prima facie
case of unlawful retaliation under the FRSA for two reasons: (1) he “submitted no
evidence that Ebel or anyone in higher management that reviewed the dismissal
decision had actual or constructive knowledge of Plaintiff’s protected activity”; and
(2) he made no showing that his protected activity was a contributing factor in
BNSF’s decision to discharge him. 980 F. Supp. 2d at 1100-01. The court explained:
“BNSF has given a consistent basis for its decision to terminate Plaintiff’s
employment, and . . . Plaintiff can point to no evidence of pretext, shifting
explanations, antagonism or hostility toward Plaintiff’s protected activity, or a change
in attitude toward Plaintiff after he engaged in protected activity.” Id. at 1101.

       On appeal, as in the district court, Kuduk argues that he satisfied these
requirements of a prima facie case because a reasonable jury could find that (i)
Trainmaster Jaeb, a “lower-level supervisor,” knew of the protected activity and acted
as a “cat’s paw” in the discharge process, and (ii) Kuduk’s protected activity was a
“contributing factor” in his discharge “because serious questions exist as to whether
Kuduk in fact committed the [fouling-the-track] violation Jaeb alleged.”

      3
        Neither of the incidents Kuduk identifies constituted protected activities under
§ 20109(a)(1) as Kuduk has not identified “any Federal law, rule, or regulation related
to railroad safety or security” that he reasonably believed to be implicated by his
complaints about the banner test or the derail handle.
                                          -6-
       “The term ‘cat’s paw’ drives from a fable conceived by Aesop . . . . In the
fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire.
After the cat has done so, burning its paws in the process, the monkey makes off with
the chestnuts and leaves the cat with nothing.” Staub v. Proctor Hosp., 131 S. Ct.
1186, 1190 n.1 (2011). In Staub, the Supreme Court held that “if a supervisor
performs an act motivated by [discriminatory] animus that is intended by the
supervisor to cause an adverse employment action, and if that act is a proximate cause
of the ultimate employment action, then the employer is liable.” Id. at 1194 (emphasis
in original).

       The cat’s paw theory articulated in Staub is consistent with the regulation
stating that the FRSA knowledge requirement may be satisfied by circumstantial
evidence the employer had actual or constructive knowledge of protected activity.
See 29 C.F.R. § 1982.104(e)(2)(ii). But Kuduk urges us to apply Staub more broadly.
Relying on the Third Circuit’s decision in Araujo v. N.J. Transit Rail Ops., Inc.,
Kuduk argues that he “need not demonstrate the existence of a retaliatory motive on
the part of the employee taking the alleged prohibited personnel action in order to
establish that his [protected activity] was a contributing factor to the personnel
action.” 708 F.3d 152, 158 (3d Cir. 2013); accord Rudolph v. Nat’l R.R. Passenger
Corp., ARB No. 11-037, 2013 WL 1647527, *11-12 (Admin. Rev. Bd. Mar. 29,
2013). Therefore, Kuduk argues, Jaeb’s knowledge of the SIRP report, together with
Kuduk’s testimony that he did not in fact violate one of BNSF’s “eight deadly
decisions,” established without more a prima facie case. We disagree.

       The FRSA provides that a rail carrier may not discharge “or in any other way
discriminate against” an employee for engaging in protected activity. 49 U.S.C.
§ 20109(a). As the Court explained in Staub, the essence of this intentional tort is
“discriminatory animus.” 131 S. Ct. at 1193. We agree with the Ninth Circuit that,
under the statute’s “contributing factor” causation standard, “[a] prima facie case does
not require that the employee conclusively demonstrate the employer’s retaliatory

                                          -7-
motive.” Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010); see Lockheed
Martin Corp. v. Admin. Rev. Bd., 717 F.3d 1121, 1137 (10th Cir. 2013) (noting that
contributing factor is a “more lenient” causation standard). But the contributing factor
that an employee must prove is intentional retaliation prompted by the employee
engaging in protected activity. See Consol. Rail Corp. v. U.S. Dep’t of Labor, No. 13-
3740, 2014 WL 2198410, at *3 (6th Cir. May 28, 2014) (unpublished) (concluding
there was “substantial evidence that animus was a contributing factor in Bailey’s
termination”); Ameristar Airways, Inc. v. U.S. Dep’t of Labor, 650 F.3d 562, 569-70
(5th Cir. 2011).4

       In this case, Ebel and the other discharge decision-makers had no knowledge --
actual or constructive -- of Kuduk’s protected activity, submitting an SIRP report
regarding the derail handle. There is no evidence Jaeb advised the decision-makers
of Kuduk’s report, or that they were otherwise aware of the unrelated report. There
is no evidence that Jaeb reacted negatively to Kuduk’s report about the derail handle --
or to Kuduk’s earlier complaint that Jaeb unfairly conducted the banner test -- and no
evidence that Jaeb communicated his knowledge of Kuduk’s safety concerns to the
decision-makers in a manner that might have influenced their discharge decision.
       Jaeb’s participation in the decision-making process was limited to testifying at
the formal hearing regarding the fouling-the-tracks incident. Though Kuduk argues
that Jaeb would not have sought to enforce the fouling-the-track rule absent Kuduk’s
SIRP report, he points to no evidence that Jaeb’s actions on June 9, or his later
testimony at the September hearing, were in any way related to the protected activity.
To the contrary, Jaeb testified that he and Mattison observed an unidentified employee
fouling the tracks on June 9; only after they parked their truck, walked toward the


      4
        In our view, the Araujo panel may have improperly relied on Marano v. Dep’t
of Justice, 2 F.3d 1137 (Fed. Cir. 1993), for its no-need-to-show-motive conclusion
because the court in Marano was construing a federal employee whistleblower statute
that required only an ultimate showing of causation in fact (“because of”), not
discrimination. Id. at 1139-41.
                                          -8-
employee, and ordered him off the tracks did Jaeb realize the employee was Kuduk.
Mattison’s account of these events was consistent with Jaeb’s, and Kuduk’s testimony
was not to the contrary.

       Turning to the other element of a prima facie case, a contributing factor is “any
factor which, alone or in connection with other factors, tends to affect in any way the
outcome of the decision.” Procedures for the Handling of Retaliation Complaints
under the Federal Railroad Safety Act, 75 Fed. Reg. at 53,524.

       Kuduk argues that the temporal proximity of his May 24 SIRP report, the June
9 incident when Jaeb and Mattison accused him of fouling the tracks, and his
September 17 discharge made a sufficient prima facie showing that the protected
activity was a contributing factor in his discharge. However, we have consistently
held that “more than a temporal connection between the protected conduct and the
adverse employment action is required to present a genuine factual issue on
retaliation.” Hervey v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir. 2008), cert.
denied, 555 U.S. 1137 (2009); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136
(8th Cir.) (en banc), cert. denied, 528 U.S. 818 (1999). This is especially true when
the employer was “concerned about a problem before the employee engaged in the
protected activity.” Hervey, 527 F.3d at 723 (quotation omitted). Here, Kuduk was
on disciplinary probation as a result of the 2009 derail incident; this “undercuts the
significance of the temporal proximity.” Id. (quotation omitted). We acknowledge
that the more lenient “contributing factor” causation standard will increase to some
extent the probative value of temporal proximity. See 29 C.F.R. § 1979.104(b)(2)
(“Normally, the [contributing factor] burden is satisfied . . . if the complaint shows
that the adverse personnel action took place shortly after the protected activity”)
(emphasis added). But we reject the notion -- suggested in some ARB decisions --
that temporal proximity, without more, is sufficient to establish a prima facie case.




                                          -9-
        In this case, it is particularly significant at the summary judgment stage that
Kuduk’s protected activity, though close in time, was completely unrelated to the
fouling-the-tracks incident that led to his discharge. The facts surrounding Kuduk’s
SIRP report shared no nexus with the later fouling-the-tracks incident. Rather,
Kuduk’s fouling of the tracks on June 9 was an intervening event that independently
justified adverse disciplinary action. Kuduk argues that “serious questions exist as to
whether [he] in fact committed the rule violation Jaeb alleged,” in essence, that BNSF
misapplied the fouling-the-track rule and thus wrongfully discharged him. However,
“federal courts do not sit as a super-personnel department that re-examines” an
employer’s disciplinary decisions. Kipp v. Mo. Highway & Transp. Comm’n, 280
F.3d 893, 898 (8th Cir. 2002) (quotation omitted). In the absence of evidence
connecting his protected activity to the discharge, Kuduk is not entitled to FRSA anti-
retaliation relief even if BNSF inaccurately concluded that he committed one of the
Eight Deadly Decisions by fouling the tracks. See Allen v. City of Pocahontas, 340
F.3d 551, 558 n.6 (8th Cir. 2003) (“it is not unlawful for a company to make
employment decisions based upon erroneous information and evaluations”), cert.
denied, 540 U.S. 1182 (2004).

       For these reasons, we agree with the district court that Kuduk’s FRSA claim
fails because he failed to present a prima facie case of unlawful retaliation.

       B. BNSF’s Affirmative Defense. We also agree with the district court that
BNSF was not liable for wrongful retaliation because it demonstrated by clear and
convincing evidence that it would have discharged Kuduk even if he had not engaged
in protected activity. See 49 U.S.C. § 42121(b)(2)(B)(ii). BNSF and the union
thoroughly investigated the report by Jaeb and Mattison that Kuduk had fouled the
tracks on June 9. BNSF then conducted a formal hearing at which Kuduk presented
testimony and witnesses; referred the evidence to a disinterested General Manager
who then had his decision approved by others in senior management; allowed Kuduk



                                         -10-
to appeal the decision; and continued to negotiate an appropriate final resolution with
the union after the discharge.

       The waiver Kuduk signed after his December 2009 rules violation warned that
additional incidents might result in discharge. BNSF’s Policy stated that a second
serious incident within twelve months was a dismissible violation. BNSF presented
uncontroverted evidence that it consistently enforced this policy, including records
showing that, within six months of Kuduk’s discharge, it discharged two other Twin
Cities Division employees who had committed a second serious safety violation while
on disciplinary probation. One employee had fouled the tracks while on probation,
the same infraction for which Kuduk was discharged.

       In these circumstances, though this affirmative defense is often not suitable for
summary judgment determination, we agree with the district court that BNSF
submitted clear and convincing evidence that it would have discharged Kuduk
whether or not he had made unrelated reports that were activity protected by the
FRSA. Kuduk argues that BNSF failed to meet its burden because whether he
actually violated the TY&E Rule is a disputed fact. But he points to no evidence
suggesting that BNSF’s decision-making process, even if flawed, would have come
out differently in the absence of Kuduk’s SIRP report. Cf. Allen, 340 F.3d at 558 n.6.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -11-
