In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1577
MICHAEL KOZIARA,
Plaintiff‐Appellee,
v.
BNSF RAILWAY CO.,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 13 C 834 — James D. Peterson, Judge.
____________________
ARGUED SEPTEMBER 20, 2016 — DECIDED OCTOBER 31, 2016
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The Federal Railroad Safety Act
forbids a railroad to discharge or otherwise discriminate
against an employee for conduct protected by the Act, in‐
cluding notifying the railroad that he has suffered a work‐
related injury. 49 U.S.C. § 20109(a), (a)(4). The plaintiff in this
case was employed by BNSF Railway Company, the second‐
largest North American freight railroad, and brought this
suit against the railroad for violating the provisions of the
2 No. 16‐1577
Railroad Safety Act that we just cited. A jury returned a ver‐
dict in favor of the plaintiff and awarded him damages, and
the defendant, having failed to persuade the district judge to
award judgment to it despite the jury’s verdict, has ap‐
pealed.
The plaintiff was a track foreman supervising crews of 50
to 100 employees responsible for track maintenance. The
company required employees to “be careful to prevent injur‐
ing themselves” and (what seems equivalent) not to be
“careless of the safety of themselves.” In addition the rail‐
road makes theft a ground for dismissing an employee and
goes further by stating that it has “a zero tolerance policy for
theft” and indeed “in all cases” the “sanction [for theft] ... is
dismissal ... regardless of [the employee’s] length of service”
or “the monetary value of whatever was stolen.”
On September 9, 2010, the plaintiff was supervising a
crew assigned to remove and reinstall crossing planks on a
segment of the railroad’s line. Crossing planks are pieces of
timber installed at railroad crossings to enable cars and
trucks to drive over the tracks. They are fastened to the track
bed by means of large wooden screws called “lags” that are
removed with a hydraulic tool before a crossing plank is lift‐
ed (the purpose of lifting the crossing plank being to allow
maintenance work on the track). On the day in question the
crew had difficulty removing one of the planks in the usual
way, and with the plaintiff’s approval a member of the crew
named Zielke used a front‐end loader—a tractor‐like vehicle
equipped in this instance with a forklift that could be used to
pry a plank loose without removing any of the lags—to re‐
move the plank. The procedure caused the plank to fly loose
No. 16‐1577 3
just as the plaintiff was walking into the center of the track,
and to strike one of his legs.
Though at first he thought he’d just bruised his leg, sev‐
eral days later he went to his doctor and learned that he’d
fractured his tibia (shinbone). After first lying to two of his
coworkers that he’d been injured at home, on advice of a un‐
ion official and a lawyer affiliated with the union he told his
supervisor, Veitz, that he’d been injured by the plank and
was going to fill out an injury report. Veitz told him to sub‐
mit the report to someone in management, which he did.
The company accepted the report and paid his medical bills.
BNSF has a policy of investigating all reported injuries by
staging a reenactment of the accident in order to learn how it
happened. Veitz staged the reenactment and concluded that
the plaintiff had been careless in walking into the crossing in
which the front‐end loader was busy trying to remove the
plank, thus placing himself in danger of being hit by the
plank as it came off the ground—and hit he was.
A week after the reenactment a member of the crew that
the plaintiff had been supervising told Veitz that he thought
the plaintiff might have been injured ten days before the
front‐end loader fiasco—while removing railroad ties from
railroad property. (Railroad ties typically are wooden strips
laid underneath and horizontal to the rails to provide sup‐
port for them.) Veitz requested a preliminary investigation
of the theft allegation, which concluded that theft charges
were warranted. Pursuant to the railroad’s collective bar‐
gaining agreement with the plaintiff’s union, the company
conducted a formal investigation presided over by railroad
managers who’d been trained to serve as hearing officers
and had not themselves been involved in the alleged mis‐
4 No. 16‐1577
conduct of the employee being investigated. Actually there
were two investigations: one of the plaintiff’s taking the rail‐
road ties without permission and the other of his careless‐
ness with regard to the front‐end loader—carelessness that
had resulted in the medical expenses that the railroad had
paid and did not seek, and has not sought, reimbursement
for from him. For his carelessness (which had cost the com‐
pany the medical expenses), the company decided that a 30‐
day suspension would be adequate punishment. But that
decision quickly became moot because the company also de‐
cided that he should be discharged because of the theft, con‐
sistent with the company policy that we quoted earlier.
Although at the hearing the plaintiff argued that Veitz
had given him permission to take the ties, which he planned
to give to a friend who had a farm, Veitz testified that he’d
never given such permission. It would have been especially
irresponsible for Veitz to have given permission because the
railroad ties were soaked in creosote, and as another manag‐
er at BNSF testified without contradiction, “we do not give
or sell creosote products to employees or the general public
and there’s reasons for it. That’s bold letters. We don’t do it.”
There are indeed reasons—compelling ones. As the U.S. En‐
vironmental Protection Agency explains, “products contain‐
ing creosote as the active ingredient are used to protect
wood against termites, fungi, mites and other pests that can
degrade or threaten the integrity of wood products. These
treated wood products are used in outdoor settings such as
in railroad ties and utility poles. ... [But] creosote is not ap‐
proved to treat wood for residential use, including landscap‐
ing timbers or garden borders,” because materials coated
with creosote can be hazardous (emphasis added). EPA,
“Creosote,” www.epa.gov/ingredients‐used‐pesticide‐
No. 16‐1577 5
products/creosote (visited Oct. 28, 2016, as were the other
websites cited in this opinion); see also Agency for Toxic
Substances & Disease Registration, Toxic Substances Por‐
tal—Creosote, “Public Health Statement for Creosote,”
www.atsdr.cdc.gov/phs/phs.asp?id=64&tid=18. To allow the
plaintiff to carry off creosote‐treated railroad ties to a farm,
where they could do real damage, would have exposed the
railroad to litigation and Veitz to the risk of a swift firing.
One would have expected the plaintiff, with his extensive
experience as a track foreman, to have known better than to
give creosote‐soaked railroad ties to a farmer, thereby com‐
pounding his theft. And that the theft had been discovered
in the course of an investigation triggered by the injury re‐
port obviously did not prevent the railroad from concluding
that he had stolen the ties. For “once an employer learns
about employee wrongdoing that would lead to a legitimate
discharge, we cannot require the employer to ignore the in‐
formation, even if it is acquired during the course of discov‐
ery in a suit against the employer” or, we add, in the course
of some other procedure, including an investigation. McKen‐
non v. Nashville Banner Publishing Co., 513 U.S. 352, 362
(1995).
Both the Railway Labor Act, 45 U.S.C. § 153(i), and the
railroad’s collective bargaining agreement with the plain‐
tiff’s union, entitled him to appeal the 30‐day suspension,
plus his discharge from the railroad’s employment, to the
National Railroad Adjustment Board (NRAB), an arbitral
body established pursuant to the Act. The plaintiff did ap‐
peal, and the union supported him, but the Board denied
both appeals, remarking that the railroad had proved that
the plaintiff had “failed to be alert and attentive when he did
6 No. 16‐1577
not safely remove a crossing board” and that the plaintiff
had “failed to prove that ... Veitz gave him permission to
remove the ties.”
Having struck out with the NRAB, the plaintiff filed a
complaint with OSHA, but OSHA rejected his complaint on
the same grounds on which the adjustment board had reject‐
ed it. (OSHA, the acronym for the Occupational Safety and
Health Administration, is of course employee‐friendly.) The
plaintiff appealed OSHA’s finding, which was preliminary.
But because OSHA did not issue a final administrative deci‐
sion within 210 days after his initial complaint, see 49 U.S.C.
§ 20109(d)(3), he was allowed to file this lawsuit, and did,
though not till three years after the accident. Much of the de‐
lay, however, was attributable to an OSHA investigation that
though protracted found no wrongdoing on the part of the
railroad.
The suit accuses the railroad of having retaliated against
the plaintiff in violation of the Federal Railroad Safety Act,
which as we noted earlier forbids a railroad to retaliate
against an employee (as by firing him) for his having noti‐
fied the railroad that he has suffered a work‐related personal
injury, incurring medical expenses that the railroad might be
required to cover. The railroad might also be required to re‐
port the injury to the Federal Railroad Administration,
which regulates railroad safety. See U.S. Dept. of Transporta‐
tion, Federal Railroad Administration, “Railroad Safety,”
www.fra.dot.gov/Page/P0010. But the parties do not tell us
whether the injury to the plaintiff in this case had to be—or
was—reported to the FRA. The plaintiff’s medical expenses
were below the applicable threshold, see 49 C.F.R. §
225.19(e), and though it is not entirely clear whether the
No. 16‐1577 7
threshold is applicable to physical injuries as distinct from
damage to equipment, the rail bed, etc., the better interpreta‐
tion is that it is indeed applicable to personal injuries rather
than to equipment, because there is a separate schedule of
reporting thresholds for equipment damage. See 49 C.F.R.
§ 225.19(c).
A further complication worth at least brief notice is in‐
troduced by the Federal Railroad Administration’s FORM
FRA F 6180.55a, 49 C.F.R. § 225.21(c), “Railroad Injury and
Illness,” which like the regulation we cited earlier lists re‐
quirements for reporting work‐related injuries to the FRA.
But again it is uncertain whether the plaintiff’s injury was
required to be reported. The form treats x‐rays and also
“soft” restraints, which might well include a walking boot,
as “first aid,” which doesn’t have to be reported. The plain‐
tiff had an x‐ray and was given a walking boot; that was the
extent of his medical treatment—indicating by the way that
it was a mild fracture. See Dr. David Geier, “Tibia Fractures”
(Jan. 18, 2011), www.drdavidgeier.com/tibia‐fractures. Dr.
Geier mentions a walking boot as a treatment for a mild tibia
fracture (if itʹs not mild, you canʹt walk; Koziara walked).
Another regulation, 49 C.F.R. § 225.12, addresses what
are called “human factor” injuries—and Koziara was the
human factor, having caused his injury by his carelessness,
which is why he was given the 30‐day suspension. While a
possible motive for retaliation against an injured employee
would be the railroad’s interest in reducing its potential lia‐
bility for employees’ medical expenses, there is no indication
that the decision to fire the plaintiff was related to the rail‐
road’s having paid his medical expenses. To fire an other‐
wise satisfactory employee for an accident that not only im‐
8 No. 16‐1577
posed a trivial cost on BNSF but would not get the railroad
in trouble with the regulatory authorities wouldn’t make
sense. In contrast, to fire him for stealing railroad property—
potentially poisonous railroad property because consisting
of creosote‐soaked railroad ties—made sense.
The slightness of the medical expenses makes it unlikely
that the railroad would have gotten into trouble with the
Federal Railroad Administration by filing an injury report,
or for that matter by not filing such a report (we don’t know
whether BNSF filed a report of the accident with the FRA.)
Although the plaintiff’s medical expenses are not in the rec‐
ord, they could not have exceeded $600, as the boot would
have cost only $100 and the x‐ray no more than $500 and
those were the only medical treatments the plaintiff re‐
ceived. These costs were peanuts to BNSF, now a wholly
owned subsidiary of Berkshire Hathaway, Warren Buffett’s
company—and a subsidiary worth many billions of dollars.
It’s true that if a jury finds that an employer’s explana‐
tion for an adverse employment action is false, it may infer
that the employer’s real reason for the action was unlawful.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
But to have found that the plaintiff’s carelessness and theft
were pretexts for firing him on a forbidden ground, the jury
would have had to find that BNSF had lied about the reason
for the action it took against him. And the plaintiff presented
no evidence of that. He claims that Veitz lied about giving
him permission to remove the ties, but does not claim that
the railroad believed that Veitz had lied in reporting the
plaintiff for having stolen the railroad ties, yet fired him in
spite of knowing that Veitz had lied. If the railroad had
No. 16‐1577 9
thought Veitz had tried to frame a worker, Veitz would have
been forced to walk the plank, not the victim of his lie.
A plaintiff is master of his case. Koziara could have ar‐
gued pretext, but chose instead to rest on the contention that
he should be deemed to have won his suit just because the
railroad never would have discovered the theft had he not
filed an injury report (which led to the investigation, which
led to the discovery of the theft). He chose his ground, and it
is a legally bad one because the filing of the report was not a
proximate cause of his being fired; having failed to make a
backup pretext argument, he does not get a do‐over.
The plaintiff had to show that his injury report was a
“contributing factor” in his being fired. 49 U.S.C.
§§ 20109(d)(2)(A)(i); 42121(b)(2)(B)(i). He never showed that,
but the judge thought that, as a matter of law, he had, and
narrowed the jury questions accordingly, resulting in the
verdict in his favor that the railroad challenges. The judge
remarked that the plaintiff’s “injury report initiated the
events that led to his discipline, and was therefore a contrib‐
uting factor to the adverse actions that he suffered” (empha‐
sis the judge’s). But in so remarking he failed to distinguish
between causation and proximate causation. The former
term embraces causes that have no legal significance. Had
the plaintiff never been born or never worked for BNSF he
would neither have been hurt by the plank flung at him by
the energetic front‐end loader nor have stolen railroad ties
from the railroad. But that doesn’t mean that his being born
or his being employed by the railroad were legally cogniza‐
ble causes of his being fired.
Proximate causation in contrast creates legal liability,
“proximate” denoting in law a relation that has legal signifi‐
10 No. 16‐1577
cance. There are different definitions of “proximate cause,”
however, and in CSX Transportation, Inc. v. McBride, 131 S.
Ct. 2630, 2638 (2011), a case under the Federal Employers’
Liability Act, the Supreme Court rejected a definition that
required that the defendant’s negligence be “the sole, effi‐
cient [or immediate] producing cause” of the injury in order
to be actionable. That would be a pertinent consideration in
this case were the plaintiff arguing that he was injured by
the negligence of his employer, but he is not arguing that.
He caused himself to be injured by being careless, and to be
fired for stealing railroad property—causal acts that the law
deems to have legal consequences if the conduct in ques‐
tion—in this case carelessness and theft—is lawfully forbid‐
den, as it was by a combination of the railroad’s announced
employment policies and the terms of its collective bargain‐
ing agreement with the union that represents employees
such as the plaintiff.
The Federal Railroad Safety Act does not punish rail‐
roads for disciplining (including firing) employees unless
the discipline is retaliatory. There is no evidence of that in
this case—no evidence of the usual forms of employment
discrimination, certainly, and no evidence that the suspen‐
sion and discharge of the plaintiff were motivated by ani‐
mus. It is true that a workman who was standing near the
plaintiff when the plank soared was not disciplined for care‐
lessness; but he wasn’t injured at all, which allowed the
company to infer that he wasn’t careless, or at least not suffi‐
ciently careless to warrant an investigation. As for the argu‐
ment in the plaintiff’s brief that it was “common for employ‐
ees to take used railroad ties” without being disciplined for
doing so, the record contains no instances of BNSF’s declin‐
ing to discipline an employee who was found to have taken
No. 16‐1577 11
ties without permission. The plaintiff does not argue that
BNSF believed that he was permitted to take the railroad ties,
in which event the stated reason for his being fired would
have been pretextual.
The district judge’s remark that the plaintiff’s injury re‐
port to the company had initiated the events that led to his
being fired and therefore had contributed to it is a further
example of confusing a cause with a proximate cause. The
plaintiff’s having been born was an initiating event without
which he would not exist, but obviously an event devoid of
legal significance. Veitz agreed that the plaintiff should
submit an injury report, but based his conclusion that the
plaintiff had been careless not on the report, which merely
described the injury, but on the reenactment of the acci‐
dent—and the reenactment, which was the proximate cause
of the decision to suspend the plaintiff, had no connection to
the injury report, which merely described medical treat‐
ment—not carelessness and not theft.
And by the way there is nothing sinister, as the term “ini‐
tiating event” may seem to suggest, in deeming the submis‐
sion of an injury report a proper occasion for an employer‘s
conducting an investigation. An injury report is a normal
trigger for an investigation designed to uncover facts that
can prompt corrective action that will reduce the likelihood
of a future injury.
In addressing the parties’ motions for summary judg‐
ment, the district judge made some legal rulings intended to
narrow the issues for trial. The critical ruling—a grant of
partial summary judgment in favor of the plaintiff—was that
the injury report was a “contributing factor” to his being
fired. In Ortiz v. Jordan, 131 S. Ct. 884, 888–89 (2011), the Su‐
12 No. 16‐1577
preme Court held that an order denying summary judgment
can’t be appealed after a full trial on the merits has been
held. “The order retains its interlocutory character as simply
a step along the route to final judgment. Once the case pro‐
ceeds to trial, the full record developed in court supersedes
the record existing at the time of the summary judgment mo‐
tion.” Id. at 889 (citation omitted). A grant of partial sum‐
mary judgment is similarly just a way station en route to a
final judgment. The grant of partial summary judgment in
this case narrowed the case, as the district judge believed, to
two issues for trial. The first was whether the injury report
had been prepared and submitted by the plaintiff in good
faith, and the second whether the railroad would have fired
him had he not filed it. And on both those issues the jury
sided with the plaintiff. Rightly on the first issue; there is no
indication that the injury report was not submitted in good
faith—the plaintiff had after all been injured, and the report
described the injury accurately.
But as for the second issue—whether the railroad would
have terminated the plaintiff had he not made an injury re‐
port—the answer was yes (not no, as the jury thought), be‐
cause there is no evidence that the railroad’s decision to fire
him was related to his having made the report. So one sees
that the district judge’s “contributing factor” ruling on
summary judgment misled the jury. The railroad provided
unrebutted evidence that it believed that the plaintiff had
stolen the ties, and the plaintiff points to no evidence that
BNSF would fail to fire an employee whom it discovered to
have stolen from the company and no evidence that BNSF
disbelieved Veitz’s account.
No. 16‐1577 13
BNSF thus proved its affirmative defense to the charge
that it fired the plaintiff because he filed (with his superior’s
agreement) an injury report citing negligible medical ex‐
penses. Consistent with language in its rules of employment
quoted earlier, the company appears to have a firm policy of
firing employees discovered to have stolen company proper‐
ty. What it does not have, so far as appears, is a policy of
singling out for discipline an employee who submits an inju‐
ry report. There is no basis in the record for supposing that
had the plaintiff not submitted an injury report but BNSF
had nonetheless discovered the stolen railroad property, he
wouldn’t have been fired. Therefore we needn’t give the
plaintiff a do‐over trial.
We end by expressing doubt that the plaintiff should
have been entitled to bring this lawsuit at all. For remember
that he did so years after he had struck out first with the ar‐
bitral board (the National Railroad Adjustment Board),
which ruled that he’d “failed to prove that ... Veitz gave him
permission to remove the ties,” and then with OSHA, which
rejected his complaint on the same grounds on which the ad‐
justment board had rejected it. Ordinarily arbitration is final;
having lost to the arbitrator or arbitrators, you can’t restart
the entire process by suing. We don’t say the plaintiff was
precluded (by some doctrine of preclusion, such as res judica‐
ta) from suing, only that the kind of protracted litigation that
he initiated and pursued is suggestive of desperation rather
than of merit.
We conclude that the judgment must be reversed with
instructions to dismiss the suit.