FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN SCHMIDT,
Plaintiff-Appellant,
v. No. 08-35845
BURLINGTON NORTHERN AND SANTA D.C. No.
06cv193-DWM
FE RAILWAY COMPANY, WESTERN
FRUIT EXPRESS, INC., a Delaware OPINION
Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
October 15, 2009—Seattle, Washington
Filed May 18, 2010
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Burns;
Concurrence by Judge Callahan
*The Honorable Larry Alan Burns, District Judge for the Southern Dis-
trict of California, sitting by designation.
7043
SCHMIDT v. BURLINGTON NORTHERN 7045
COUNSEL
John A. Kutzman, Paoli, Latino & Kutzman, P.C., Missoula,
Montana, for the plaintiff-appellant.
Jacquelyn M. Hughes, Hedger Friend, P.L.L.C., Billings,
Montana, for the defendants-appellees.
7046 SCHMIDT v. BURLINGTON NORTHERN
OPINION
BURNS, District Judge:
John Schmidt appeals the district court’s grant of summary
judgment in favor of Defendant Burlington Northern and
Santa Fe Railway Company (BNSF) on his negligent injury
claim under the Federal Employers Liability Act (FELA), 45
U.S.C. §§ 51 et seq. The district court found Schmidt did not
present adequate evidence to show he was employed by
BNSF. We disagree, and conclude Schmidt’s evidence raises
a triable issue of fact as to whether BNSF was his employer.
Background
BNSF is a major railway company and is engaged in inter-
state commerce. Schmidt was originally hired in 1975 by
Western Fruit Express (WFE), a wholly-owned subsidiary of
BNSF. WFE does not transport passengers or goods but pro-
vides, maintains, and repairs refrigerated cars and trailers for
use by BNSF and other railroad lines. WFE and BNSF main-
tain joint facilities at Hillyard, in Spokane, Washington.
Schmidt was employed by either BNSF or WFE or both
intermittently from 1975 through 1999, when he was fur-
loughed. He was recalled to work in 2003, but BNSF’s medi-
cal officer determined he was not fit to return to duty because
a medical exam uncovered he had suffered a severe neck
injury. Schmidt maintains his neck injury resulted from weld-
ing assignments he performed from 1992 through 1999 in the
car shop in Spokane, and blames the injury on his supervi-
sors’ negligence. According to Schmidt, he worked almost
continuously on projects that required hours of welding
underneath railroad cars while wearing a welding hood and
hard hat.
Schmidt offered the following evidence1 in support of his
1
BNSF submitted contrary evidence to show Schmidt was employed by
WFE, but we need not concern ourselves with it since the district court
SCHMIDT v. BURLINGTON NORTHERN 7047
contention that BNSF, and not WFE, was his employer during
the relevant time period:
• Schmidt applied in 1975 at a Burlington Northern
office to work for Burlington Northern.
• The official who first hired him in 1975 told him
he was a Burlington Northern employee.
• Some of Schmidt’s coworkers in the welding
shop thought they worked for BNSF.
• Signage on the premises and railroad cars named
BNSF, or both BNSF and WFE.
• There were two railroad car shops on the prem-
ises where Schmidt worked, one marked with a
sign bearing BNSF’s name only and the other
bearing BNSF’s and WFE’s names; he worked in
the latter.
• Workers’ and supervisors’ hard hats had BNSF
logos.
• Correspondence from BNSF addressed Schmidt
as “employee” or by a work title indicating he
worked for BNSF.
• BNSF provided Schmidt and other workers with
gloves and gave them vouchers for boots.
• Schmidt was given a summary plan description
for the BNSF Retirement Plan.
granted summary judgment based on the inadequacy of Schmidt’s evi-
dence that he was a BNSF employee.
7048 SCHMIDT v. BURLINGTON NORTHERN
• BNSF handled Schmidt’s payroll, and its name
was on his pay stubs. Some of his pay statements
mentioned that BNSF was paying him on behalf
of WFE.
• BNSF required and provided or sponsored train-
ing in job skills, safety, and avoiding discrimina-
tion and harassment.
• Workers from the BNSF main shop attended
weekly and monthly safety meetings attended by
workers in Schmidt’s shop.
• Schmidt’s injuries can be traced at least in part to
welding work he did on railroad cars for BNSF.
• When Schmidt was welding BNSF’s cars, he was
required by BNSF policy to wear a hard hat and
welding hood.
• BNSF internal publications on the subject of
safety records mentioned WFE workers as part of
the BNSF workforce.
• The 2003 letter recalling Schmidt to work came
from BNSF’s senior manager for “Mechani-
cal/TCU General Timekeeping and Analysis.”
• When Schmidt was recalled, he was told to report
to BNSF’s mechanical department.
• BNSF acknowledged Schmidt’s request to exer-
cise his “seniority in the Mechanical Department
of the Burlington Northern Santa Fe Railway.”
• Schmidt was screened to return to work by
BNSF’s medical officer and BNSF paid for the
medical exam.
SCHMIDT v. BURLINGTON NORTHERN 7049
FELA authorizes employees of railroads engaged in inter-
state commerce to sue their employers for negligent injury in
the course of employment. 45 U.S.C. § 51. It is undisputed
BNSF is a railroad within this provision, but WFE is not. If
WFE was Schmidt’s sole employer, his remedies would be
limited to worker’s compensation. If BNSF was his employer,
FELA provides for the recovery of additional damages.
Discussion
Summary judgment should be granted “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “[A]ll reasonable inferences are to be
drawn in favor of the non-moving party.” Surfvivor Media,
Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005).
The evidence must be enough for a “reasonable trier of fact”
to find for the plaintiff. Addisu v. Fred Meyer, Inc., 198 F.3d
1130, 1134 (9th Cir. 2000). We review the granting of sum-
mary judgment de novo. Enlow v. Salem-Keizer Yellow Cab
Co., 389 F.3d 802, 811 (9th Cir. 2004).
[1] Under FELA, the test of whether a company is the
employer of a particular worker turns on the degree of control
the company exerts over the physical conduct of the worker
in the performance of services. Kelley v. Southern Pac. Co.,
419 U.S. 318, 324 (1974). Kelley recognizes three different
theories of control, derived from common law, by which a
plaintiff can establish employment for FELA purposes. “First,
the employee could be serving as the borrowed servant of the
railroad at the time of his injury. . . . Second, he could be
deemed to be acting for two masters simultaneously. . . .
Finally, he could be a subservant of a company that was in
turn a servant of the railroad.” Id. (citations omitted). In pro-
ceedings before the district court, Schmidt pursued his claims
primarily under the third Kelley theory, the “subservant” theory.2
2
Schmidt also argued he was employed by BNSF exclusively, but the
evidence does not support his contention.
7050 SCHMIDT v. BURLINGTON NORTHERN
Although he now argues he could have brought his claims
under Kelley’s second theory, the “joint employer” theory, he
concedes he did not argue this below, and we therefore treat
the argument as waived. Brazil v. United States Dep’t of
Navy, 66 F.3d 193, 198-99 (9th Cir. 1995).
[2] To prove WFE was BNSF’s servant, Schmidt must
establish BNSF controlled or had the right to control the phys-
ical conduct of WFE’s employees in the course of the work
during which the injury allegedly occurred. Kelley, 419 U.S.
at 325. The subservant theory presupposes the existence of
two separate entities in a master-servant relationship. A plain-
tiff can proceed under this theory by showing his employer
was the common-law servant of the defendant railroad such
that the railroad controlled or had the right to control the
employer’s daily operations. Id. A plaintiff must also show he
was “employed to perform services in the affairs of [the
defendant railroad] and . . . with respect to the physical con-
duct in the performance of the services [was] subject to [that
railroad’s] control or right to control.” Id. at 324 (quoting
Restatement (Second) of Agency § 220(1)). For Schmidt to
succeed under the subservant theory, he must show BNSF
controlled or had the right to control his physical conduct on
the job. Id. It is not enough for him to merely show WFE was
the railroad’s agent, or that he was acting to fulfill the rail-
road’s obligations; BNSF’s generalized oversight of Schmidt,
without physical control or the right to exercise physical con-
trol of his daily work is insufficient. Id. at 325-26; Lodge
1858, Am. Fed’n of Gov’t Employees v. Webb, 580 F.2d 496,
504 (D.C.Cir. 1978).
The Restatement lists factors relevant to determining
whether a master-servant relationship exists. Kelley, 419 U.S.
335 (Douglas, J., dissenting) (citing Restatement (Second) of
Agency § 220, comment c; § 227, comment a; Baker v. Texas
& Pac. Ry. Co., 359 U.S. 227, 228 (1959)). They include:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
SCHMIDT v. BURLINGTON NORTHERN 7051
(b) whether or not the one employed is engaged in
a distinct occupation or business;
(c) the kind of occupation, with reference to whether,
in the locality, the work is usually done under the
direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies
the instrumentalities, tools, and the place of work for
the person doing the work;
(f) the length of time for which the person is
employed;
(g) the method of payment, whether by the time or
by the job;
(h) whether or not the work is a part of the regular
business of the employer;
(i) whether or not the parties believe they are creat-
ing the relation of master and servant; and
(j) whether the principal is or is not in business.
Restatement, § 220(2).3
[3] Applying these factors, we conclude Schmidt’s evi-
dence could reasonably support a finding that WFE was
3
In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses “employer” and “employee”
rather than “master” and “servant,” Restatement (Third) of Agency,
§ 2.04, comment a, and defines an employee simply as a type of agent
subject to a principal’s control. Id., § 7.07(3)(a).
7052 SCHMIDT v. BURLINGTON NORTHERN
BNSF’s servant, and that BNSF had the right to control
WFE’s employees, including Schmidt. For example, Schmidt
offered evidence that BNSF’s policies regulated how he car-
ried out the welding work which may have caused his inju-
ries, and required Schmidt to participate in its safety and job
skills training along with BNSF and WFE employees. In addi-
tion, Schmidt’s supervisors wore BNSF logos on their work
clothing, suggesting they may have been BNSF’s agents, and
indirectly suggesting BNSF controlled how Schmidt did his
work. And, it was BNSF’s own medical officer who deter-
mined Schmidt was unable to return to work, which could
support a finding that BNSF controlled who worked for WFE.
Also bolstering the inference of a close link between BNSF
and WFE, BNSF actually issued Schmidt’s paychecks. Con-
sidered cumulatively, Schmidt’s evidence might persuade a
reasonable jury that BNSF had the right to exercise day-to-
day control over the jobs of WFE’s employees.
That other WFE employees with similar job responsibilities
said they thought they worked for BNSF, though not determi-
native, is relevant as well. Vanskike v. ACF Indus., Inc., 665
F.2d 188, 199 (8th Cir. 1981) (“The belief of an employee as
to who is his employer is a fact to be considered in determin-
ing whether a master-servant relationship exists.”) Statements
in BNSF’s productivity reports, circulated internally, also
suggest that BNSF may have regarded WFE as part of itself
and therefore within its control. See Restatement, § 220(2)(i)
(listing, as one factor to be considered, the parties’ belief
about their relationship). In the same way, statements by
BNSF’s management referring to Schmidt as a BNSF
employee and treating him as subject to its control tend to
show BNSF regarded Schmidt as one of the company’s own
employees.
[4] The district court found no evidence BNSF actually
controlled WFE’s employees’ daily work, and on that basis
granted summary judgment. While we agree the evidence
BNSF exercised actual day-to-day control is scant, the district
SCHMIDT v. BURLINGTON NORTHERN 7053
court did not consider whether BNSF had the right to control
Schmidt’s daily work. On this point, we conclude Schmidt
presented adequate evidence for a rational jury to find BNSF
could control critical aspects of his daily work, including
those aspects that may have caused his injury. For this reason,
we reverse the district court’s grant of summary judgment and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
CALLAHAN, Circuit Judge, Concurring:
I concur with my colleagues that the district court’s grant
of summary judgment was premature. On the record before
us, there is enough evidence to raise a material issue of fact
as to whether Burlington Northern & Santa Fe Railway Com-
pany (“BNSF”) controlled John Schmidt’s (“Schmidt”) day-
to-day work activities at the time that he was injured. See,
e.g., Baker v. Texas & Pac. Ry. Co., 359 U.S. 227, 228 (1959)
(explaining that the question of whether an individual is an
employee of a railroad for the purpose of FELA is generally
a question of fact). I write separately to make two points.
First, both the majority’s comments about or interpretations
of the facts, as well as their conclusion that, “Schmidt pre-
sented adequate evidence for a rational jury to find BNSF
could control critical aspects of his daily work, including
those aspects that caused his injury,” are made in the context
of a motion for summary judgment when the record is viewed
in the most favorable light to Schmidt: the majority is not
weighing the evidence or making credibility determinations.1
1
A few examples to illustrate my concerns: while the majority states
that “Schmidt offered evidence that BNSF’s policies regulated how he car-
ried out the welding work which may have caused his injuries, and
required Schmidt to participate in its safety and job skills training along
7054 SCHMIDT v. BURLINGTON NORTHERN
See, e.g., Hauk v. JP Morgan Chase Bank USA, 552 F.3d
1114, 1117-18 (9th Cir. 2009) (“When determining whether
a genuine issue of material fact remains for trial, we must
view the evidence and all inferences therefrom in the light
most favorable to the non-moving party and may not weigh
the evidence or make credibility determinations.”); Suzuki
Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d
1110, 1140-41 (9th Cir. 2003) (“Credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary judg-
ment or for a directed verdict.”).
Second, as the majority makes clear,“to prove WFE was
BNSF’s servant, Schmidt must establish BNSF controlled or
had the right to control the physical conduct of WFE’s
employees in the course of the work during which the injury
allegedly occurred.” See Kelley v. Southern Pac. Co., 419
U.S. 318, 325 (1974). Therefore, the focus on remand should
be whether the railroad controlled or had the right to control
with BNSF and WFE employees,” the record is not at all clear on this
point as none of the workplace policies or training cited by Schmidt
appear to be directly related to welding work. Further, the majority states
that Schmidt’s supervisors wore BNSF logos on their clothing and notes
that Schmidt provided evidence that BNSF may exercise some control
over some of WFE’s administrative functions (e.g., issuing checks, pro-
viding medical services), but whether BNSF merely provided uniforms
and administrative functions to its subsidiary without any control over the
day-to-day functions of WFE’s employees, or whether BNSF employees
exercised (or had the right to exercise) control over WFE’s employees are
issues that must be left to the jury to decide. Also, the majority’s assertion
that “statements by BNSF’s management referring to Schmidt as a BNSF
employee and treating him as subject to its control tend to show BNSF
regarded Schmidt as one of the company’s own employees” is problematic
because it is unclear what “statements” the majority is referring to. The
primary “statements” in the record are mass mailings regarding general
company issues, such as eligibility for benefits, and many were sent out-
side the relevant time period. Although the letters may be indirect evi-
dence of BNSF’s control, their weight should be left to the jury to decide.
SCHMIDT v. BURLINGTON NORTHERN 7055
Schmidt’s welding work during the 1992-1999 time period
when he alleges he was injured. See id.2 Evidence of the rail-
road’s control of some of WFE’s administrative functions, for
example, while indicative of a certain level of control, may
not be sufficient, without more, to show control over
Schmidt’s welding activities.
2
Since Kelley was decided, circuit opinions analyzing the issue of FELA
liability under any of the three prongs of Kelley have uniformly focused
on whether the railroad controlled or had the right to control the plaintiff
at the time of his injury. See Dixon v. CSX Transp. Inc., 990 F.2d 1440,
1445-48 (4th Cir. 1993) (holding that where an individual could not show
that, at the time of the accident, he was employed to perform services for
the railroad, or was subject to the control of the railroad, then he was not
an employee for FELA liability purposes); Williamson v. Consol. Rail
Corp., 926 F.2d 1344, 1348-52 (3d Cir. 1991) (holding that an individual
who worked for a wholly-owned subsidiary of a railroad had shown suffi-
cient evidence that he was under the control and direction of the railroad
at the time of his accident to defeat summary judgment); Warrington v.
Elgin Joliet & Eastern Ry. Co., 901F.2d 88, 90-91 (7th Cir. 1990) (holding
that an individual proceeding under the subservant theory failed to show
that at the time of the accident he or other employees of the allegedly ser-
vant company were performing work for the railroad); Lindsey v. Louis-
ville & Nashville R.R. Co., 775 F.2d 1322, 1324-25 (5th Cir. 1985)
(holding that there were sufficient facts to support the plaintiff’s conten-
tion that the railroad had a significant supervisory role over him at the
time of his accident); Bradsher v. Mo. Pac. R.R., 679 F.2d 1253, 1257-58
(8th Cir. 1985) (holding that genuine issue of material fact existed where
individual presented evidence that he worked under direction and control
of railroad employees on railroad property at the time he was injured);
Vanskike v. ACF Indus. Inc., 665 F.2d 188, 198-200 (8th Cir. 1981) (hold-
ing there was sufficient evidence to demonstrate that the railroad “exer-
cised actual control and supervision at the time of the accident”).