The Tenth Circuit Court of Appeals has affirmed a lower court’s decision to grant summary judgment to the Kansas City Southern Railway Company (KCSR), ruling that a former conductor, Justin Berberich, failed to establish the core element of his retaliation claim under the Federal Railroad Safety Act (FRSA). Berberich alleged he was fired for engaging in protected activity when he defied what he called a “standing order” regarding who should operate track switches.
However, the appellate court found that Berberich’s actions—walking a long distance to line a switch himself—did not constitute a “refusal to work” as required by the FRSA. Furthermore, the court found no evidence that Berberich was confronting an “imminent danger” when he took action.
The Alleged Protected Activity: A Misunderstood “Standing Order”
Berberich, employed as a conductor, claimed his protected activity involved refusing to let the train engineer line a track switch in January 2019. He argued that a “standing order” required engineers, not conductors, to perform this task, and that allowing an engineer to leave the cab controls unattended posed a significant safety risk.
The FRSA, specifically 49 U.S.C. § 20109(b)(1)(B), protects employees who refuse to work when faced with a hazardous safety condition, provided certain strict conditions are met, including the existence of an imminent danger.
The Tenth Circuit panel, led by Judge Hartz, found that Berberich’s central premise—the existence of an unwritten, constant “standing order”—was unsupported by the record. Testimony from Berberich and another witness suggested that supervisors, particularly one named Mike Pollard, would occasionally instruct engineers to line switches to expedite movements. Cross-examination of Berberich revealed that his use of the term “standing order” actually referred to these ad hoc, situational instructions from management, not a formal, standing rule.
The court noted that Berberich’s own attorney later recharacterized these instructions as a “preference” rather than a standing order during earlier proceedings, though this testimony was not cited in the appellate briefs.
Did He Refuse to Work? The Court Says No
The most significant hurdle for Berberich’s appeal was the statutory language requiring a “refusal to work.” The court scrutinized Berberich’s description of the January 2019 incident.
Berberich testified that the engineer notified him a switch needed alignment, and Berberich then walked the considerable distance from the rear of the train to the front to line it himself. He stated this was his job and the “safe course.”
The court determined that walking the distance and manually lining the switch—performing his designated duties—was, by definition, *working*, not refusing to work.
“We fail to see how that activity was ‘not working,’ regardless of whether he was violating a standing order that engineers, not conductors, should throw switches,” the opinion stated.
The court rejected the idea that “refusing to work” could mean “refusing to work in an unsafe manner required by the employer.” The judges pointed out that if Congress intended to protect refusals to violate safety standards, it would have used clearer language, such as the language found in a preceding section of the FRSA which specifically protects employees who “refus[e] to violate… any Federal law, rule, or regulation relating to railroad safety.”
Lack of Imminent Danger
Even if the court accepted that Berberich somehow refused to work, the claim still failed because the necessary safety conditions were not met. Under the FRSA, the hazardous condition must present an “imminent danger of death or serious injury,” and the situation must be so urgent that there is no time to eliminate the danger without the refusal.
Berberich argued the hazard was the potential for the engineer to leave the controls unattended. However, the court found no evidence that the engineer on that day was ordered to line the switch or even intended to do so. Berberich admitted he didn’t tell the engineer *not* to line the switch; rather, he proceeded because it was “common practice a conductor is going to line the switch.”
Because Berberich was simply fulfilling his expected role and there was no immediate threat of an engineer abandoning his post, the “imminent danger” element could not be established.
Affirming Summary Judgment
The district court had initially granted summary judgment based on the railroad proving the decision-maker (Chad Devenney, the general manager who fired Berberich) was unaware of the protected activity. The Tenth Circuit, however, elected to affirm the judgment on the more fundamental ground: Berberich failed to prove he engaged in protected activity in the first place.
Berberich was ultimately terminated in February 2019 for leaning on a rail car, a separate safety infraction. While Berberich suggested his termination was pretextual and that the railroad had begun “bird dogging” him after the January switch incident, the appellate court found that the lack of a valid protected activity claim rendered these subsequent arguments immaterial to establishing a retaliation claim under the FRSA.