United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
JAMES E. SHADID, Chief District Judge.
This matter is now before the Court on Defendant Burlington Northern Santa Fe Railway Company's ("BNSF") Motion for Partial Summary Judgment . This matter has been fully briefed and parties were heard November 12, 2014. For the reasons set forth below, Defendant's Motion for Partial Summary Judgment  is GRANTED.
STATEMENT OF FACTS
The facts in this case are largely undisputed. On December 6, 2009, Winkler sustained a workplace injury when he tightened a handbrake on a tank car. Winkler reported his injury and the hazardous safety conditions that contributed to his injury to BNSF. On January 12, 2010, BNSF served Winkler with a Notice of Investigation. On March 1, 2010, after an investigation, BNSF disciplined Winkler by placing him on a 30-day suspension and one-year probation. Winkler appealed his First Level-S Discipline with the Public Law Board; his appeal was subsequently denied. On April 16, 2010, Winkler filed a complaint against BNSF with OSHA alleging BNSF retaliated against him for reporting his December 6, 2009 injury.
On August 28, 2010, Winkler's train failed to stop at a red signal. Winkler was the conductor and William Young was the engineer; both were responsible for ensuring that the train stopped. On August 30, 2010, BNSF issued both Winkler and Young Notices of Investigation. The Notice of Investigation stated Winkler was not eligible for alternative handling because he had a Level S violation from the December 6, 2009 incident. After an investigation, BNSF terminated Winkler on September 10, 2010 because he was on probation from his First Level S-Discipline when he failed to stop at the red signal. Young, who did not have a First Level S violation, was eligible for alternative discipline and was not terminated. Winkler appealed his Second S Level violation with the Public Law Board on the grounds that BNSF did not discuss the possibility of a waiver with him or his Union Representative.
On July 27, 2011, OSHA issued an Order finding Winkler's December 6, 2009 injury was not caused by any fault of Winkler, but that the cause of Winkler's injury was BNSF's procedure of not protecting employees assigned to work on a live track. OSHA found that Winkler proved his protected activity of reporting his injury was a contributing factor in the discipline assessed against Winkler. OSHA further found that BNSF failed to demonstrate they would have taken the same adverse action in the absence of Winkler reporting his injury. OSHA ordered BNSF to cease and desist automatic issuance of notices of investigation to employees who report work injuries without reasonable suspicion that the hearing will uncover evidence of a policy violation or misconduct. OSHA further ordered BSNF:
1. To pay Winkler $25, 000 for mental pain and emotional distress due to the humiliation and loss of income from the wrongful suspension.
2. To pay Winkler $75, 000 in punitive damages for its reckless disregard for the law and complete indifference.
3. To pay Winkler's attorney fees in the amount of $7, 500.
4. Expunge all computerized systems of references to the disciplinary hearing involving Winkler on December 10, 2009.
5. Expunge all computerized systems of references to the 30-day suspension and one-year probation.
On February 27, 2013, the Public Law Board found that BNSF violated the Collective Bargaining Agreement when it issued a Notice of Investigation for the red light violation after Winkler requested a waiver and BNSF did not expressly state that a waiver would not be permitted. The Public Law Board ordered BNSF to reinstate Winkler and make him whole for lost wages and benefits. BNSF complied. Winkler remained terminated from BNSF from September 2010 until he was reinstated in April 2013, following the February 2013 reinstatement order from the Public Law Board.
I. Legal ...