Walker

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

NATHAN WALKER CASE NO. 5:23-CV-00740

VERSUS JUDGE TERRY A. DOUGHTY

UNION PACIFIC RAILROAD CO MAG. JUDGE KAYLA D.

MCCLUSKY

MEMORANDUM RULING

Before the Court is a Motion for Summary Judgment [Doc. No. 77] filed by

Defendant, Union Pacific Railroad, Co. (“Union Pacific”). Plaintiff, Nathan Walker

(“Walker”), filed an Opposition [Doc. No. 79]. Union Pacific then filed a Reply [Doc.

No. 80].

For reasons set forth, Union Pacific’s Motion is DENIED IN PART and

GRANTED IN PART.

I. Background

On March 19, 2022, Walker was working as a conductor in Union Pacific’s

Hollywood Yard (“the Yard”) in Shreveport, Louisiana.1 While working in the Yard

that evening, Walker testified he had stepped off a locomotive and was kneeling down

at the derail sign with his head down to take the locks off the derail switch when he

heard “gunshots start flying out” in vicinity of his worksite (hereinafter, the

“Incident”).2 Walker claims he took cover immediately after hearing the gunshots,

1 [Doc. No. 43-3, p. 2 at ¶ 3].

2 [Doc. No. 77-3, p. 22 at ¶¶ 17–20; p. 17 at ¶¶ 5–8].

hiding behind a wheel on the right side of the locomotive situated approximately ten

yards behind him, placing himself in a position where the train separated him from

the road.3 While Walker admits he could not see the road at the time of the shooting,

nor how far away the gunshots were, because he was kneeling at the derail switch

sign and immediately took cover behind the wheel after hearing the shots.4 Walker

testified he believes the gunshots came from a car he noticed slowly approaching the

Yard right before he heard the gunshots.5 James Ezernack (“Ezernack”), an engineer

for Union Pacific working with Walker on the night of the Incident, testified he also

“heard several gunshots that were close by,” but couldn’t see where they were coming

from.6 Ezernack claims to have ducked his head while sitting in the locomotive

because he believed the shots were very close based on how loud they were.7

Walker and Ezernack immediately reported the alleged gunshots over the

locomotive’s radio to the yardmaster, Wayne Haughton (“Haughton”).8 Haughton

instructed the two to continue taking the locomotive to the roundhouse and finish

their work that night.9 Walker took the locomotive to the roundhouse and then told

Ezernack that he could not handle working anymore and left.10 Haughton notified

Samuel Embras (“Embras”), Senior Manager of Terminal Operations, of the Incident,

and Embras later spoke with Walker and Ezernack for almost an hour.11 Haughton

3 [Id. at p. 20 at ¶¶ 3–17].

4 [Id. at pp. 20–21].

5 [Id. at p. 21 at ¶ 11].

6 [Doc. No. 77-10, p. 6 at ¶¶ 9–10].

7 [Id. at ¶¶ 12–23].

8 [Doc. No. 77-3, p. 25 at ¶¶ 3–19].

9 [Id. at p. 26 at ¶¶ 13–14].

10 [Id. at ¶¶ 16–19].

11 [Doc. No. 77-4, p. 9]; [Doc. No. 77-6, p. 8 at ¶¶ 10–11].

filed an incident report that evening through Union Pacific’s Response Management

Communication Center (“RMCC”) Incident Management System.12 Haughton also

notified the local sheriff’s department and the Shreveport Police Department.13

The next day, Embras and Union Pacific Railroad Police Officer Quincy Bryant

(“Officer Bryant”) searched the area and did not find shell casings.14 Officer Bryant

and Officer Jack Bartlett of the Union Pacific Railroad Police Department filed a

supplemental police report after speaking with Embras and Walker on a conference

call.15 The report detailed Embras’ skepticism over Walker’s reporting, noting that

Embras stated Walker “is known to often try to avoid doing work” and “complained

to his coworkers about having to switch a block[.]”16 The report stated the responding

officers were unable to locate the vehicle responsible for firing the shots.17 Bullet holes

were found on the alleged derail switch sign.18 The locomotive that Walker was near

was equipped with a security camera which captured the Incident (“TIR video”). 19

The TIR video shows the locomotive moving forward at 11:29:15 p.m. C.S.T. with

Walker approaching the train on the right side carrying a light in his left hand and

wearing a reflective vest.20 Fifteen seconds later, a car passes on the road on the left

side of the train.21 A second car passes on the same road a few seconds later and exits

12 [Doc. No. 77-7, at p. 1].

13 [Doc. No. 77-6, p. 8 at ¶¶ 7–9].

14 [Id. at p. 10 ¶¶ 21–25]; [Id. at p. 11 at ¶ 1].

15 [Doc. No. 77-4, at pp. 1–2, 9].

16 [Id. at p. 9]

17 [Id. at p. 1].

18 [Doc. No. 43-4, p. 10]; [Doc. No. 43-7, p. 2].

19 [Doc. No. 77-5, p. 1 Exhibit C- TIR Video from Locomotive on Flash Drive].

20 [Id. at 11:29:15 p.m. C.S.T.].

21 [Id. at 11:29:30 p.m. C.S.T.].

the frame at 11:30:50 p.m. C.S.T.22 The TIR video captured a noise of what appears

to be three consecutive gunshots coming from a distance.23 However, the TIR video

did not capture a perpetrator or the exact source of the alleged shooting.24

Immediately after the shooting noise, Walker and Ezernack are heard laughing, with

Ezernack exclaiming “Got him!” and Walker saying “Hey, tell Wayne I’m done. F***

that.”25 The TIR video ends with the train slowly moving to the roadhouse.26

As a result of the Incident, and despite Embras’ skepticism, Walker was given

three days off work.27 On March 22, 2022, Walker called the Employee Assistance

Program (“EAP”) seeking medical leave due to anxiety from the Incident.28 Walker

spoke with Tom Reimers (“Reimers”), who approved Walker’s request for medical

leave of absence (“MLOA”), and set Walker up to see a licensed professional counselor,

Jerry Franklin (“Franklin”).29 On March 25, 2022, Reimers emailed Walker and

provided him with instructions regarding Union Pacific’s reporting requirements for

a MLOA.30 The email sent to Walker stated that it was Walker’s responsibility to

submit documentation from his provider to secure medical leave, extend medical

leave, or return to work. 31 The email further stated, “To secure your initial medical

leave (or any length of time for more or less than 30 days), your provider must submit

22 [Id. at 11:29:50 p.m. C.S.T.].

23 [Id. at 11:29:56 p.m. C.S.T.].

24 [Id.].

25 [Id. at 11:31:10 p.m. C.S.T.].

26 [Id. at 11:31:44 p.m. C.S.T.].

27 [Doc. No. 43-5, p. 86, ¶¶4–7].

28 [Doc. No. 38-3, p. 27].

29 [Id. at pp. 27–29].

30 [Doc. No. 77-8, pp. 2–7].

31 [Id. at p. 2].

to EAP the documentation that is listed below.”32 Additionally, the email informed

Walker that failure to provide documentation to extend his medical leave could result

in his leave being revoked or going into a show cause process.33 The email explained

the show cause process could lead to an investigation for Walker being considered

absent without official leave (“AWOL”).34 During this time, Walker reported the

Incident to Union Pacific’s safety hotline and spoke to Union Pacific’s General

Chairman, Scott Chelette (“Chelette”), who encouraged him to “keep [his] head up.”35

After EAP approved Walker’s MLOA request, Walker began receiving

counseling from Franklin, who diagnosed Walker with post-traumatic stress

disorder.36 On April 11, 2022, Reimers emailed Walker to remind him of his obligation

to submit documentation by April 24, 2022.37 That same day, Walker requested

Franklin submit the documentation before the deadline and indicated that he desired

to participate in the “borrow out” and move to another service unit.38 However,

Walker injured his arm while moving furniture and asked Franklin to delay

submitting the documents until late Sunday, before the deadline.39 Ultimately,

neither Walker nor Franklin timely submitted the required documents, nor did Union

Pacific directly request documentation from Franklin.40 Despite the failure to timely

32 [Doc. No. 77-8, p. 3].

33 [Id. at p. 4].

34 [Id.].

35 [Doc. No. 43-5, p. 86 at ¶¶ 1–3]; [Doc. No. 43-5, p. 88 at ¶ 19].

36 [Doc. No. 43-3, p. 4, at ¶ 8].

37 [Doc. No. 77-8, at p. 8 (“Make sure and have your therapist send in documentation that you have

been seen twice to secure and extend your medical leave.”)].

38 [Doc. No. 43-11, at p. 2].

39 [Doc. No. 77-9, at p. 5].

40 See [Doc. No. 43-18, p. 2 at ¶ 5].

file the required documents, EAP granted Walker a grace extension of his MLOA

until May 8, 2022.41 Reimers called Walker on May 9, 2022, to inform him that his

MLOA was revoked because no documentation was received by the EAP.42 Walker

understood the consequences of failing to submit documentation and informed

Reimers that his provider would send over the documentation after his next

appointment on May 11, 2022.43

On May 13, 2022, Union Pacific sent a Notice of Revocation for failure to

provide documentation to support his need for medical leave.44 Walker was notified

that leave revocations were subject to MAPS discipline policies.45 On May 16, 2022,

Walker received a termination letter from Union Pacific for failure to provide

documentation to secure or extend his MLOA.46 Walker spoke with Chelette after

receiving the termination letter, who assured him that he would “talk to a few

people.”47 That afternoon, Chelette sent an email to Zac Tegeder (“Tegeder”) and

others saying Walker needs to be marked up at once for being on MLOA in HP

status.48 Four days later, Chelette sent a follow-up email for an update on Walker’s

status in the system, explaining that he spoke to Walker who informed him that he

sent in his paperwork to return to work.49 On May 21, 2022, Walker emailed Reimers

41 [Doc. No. 77-12, p. 4].

42 [Id. at p. 3].

43 [Id.].

44 [Doc. No. 77-4, p. 11].

45 [Id.].

46 [Doc. No. 77-13, p. 5].

47 [Doc. No. 43-5, p. 109 at ¶19; p. 110 at ¶ 7].

48 [Doc. No. 77-8, p. 13]; [Doc. No. 43-5, p. 90 at ¶¶ 13–16] (HP status means the employee is physically

unable to work).

49 [Doc. No. 77-8, p. 13].

an illegible document from Franklin to reinstate MLOA.50 Reimers responded on May

23, 2022, that the provider documentation was illegible, and Walker responded

shortly thereafter that Franklin would send the provider documentation to

Reimers.51 Franklin sent over the provider documentation later that day.52 Walker

spoke with Reimers about his desire to come back to work on the day of his

reinstatement on May 23, 2022.53 Reimers explained that his release depended on

Franklin’s documentation and Walker’s “ability to be safe at work.”54 Roberta

Johnson (“Johnson”), Senior Director of Ops Support, replied to Chelette’s email that

afternoon stating Walker’s AWOL would be removed, but that he would be reinstated

into HP status because Franklin’s documentation did not release him to ready to work

status.55 Walker’s MLOA was extended three times: on May 23, 2022, his MLOA was

extended until June 23, 2022, on June 20, 2022, his MLOA was extended until August

22, 2022, and on August 15, 2022, his MLOA was extended until October 21, 2022.56

On October 18, 2022, Walker was released to return to work and ultimately returned

to work.57

On August 17, 2022, Walker filed a complaint with the Occupational Safety

and Health Administration (“OSHA”) asserting Union Pacific unlawfully retaliated

against Waker for engaging in protected activity under the Federal Railroad Safety

50 [Id. at pp. 11–12].

51 [Id. at p. 10].

52 [Doc. No. 77-9, p. 2].

53 [Doc. No. 43-3, p. 5 at ¶15].

54 [Doc. No. 77-12, p. 3].

55 [Doc. No. 77-8, p. 13].

56 [Doc. No. 77-12, pp. 2–3].

57 [Id. at p. 2].

Act (“FRSA”) 49 U.S.C. § 20109(a) and (b).58 On March 22, 2023,59 Walker filed suit,

asserting two causes of action.60 Walker asserts Union Pacific violated the Federal

Employer’s Liability Act (“FELA”) by negligently and carelessly failing to provide him

with a reasonably safe place to work which caused and/or contributed to serious

mental injuries that he sustained as a result of a shooting on the night of March 19,

2022.61 Additionally, Walker alleges two separate retaliatory adverse actions under

FRSA: (1) Union Pacific terminated Walker’s employment soon after he made

multiple reports about the gunshot incident and refused to work in the hazardous

safety or security conditions at the Yard, and (2) Union Pacific refused to allow

Walker to return to work for several months after reversing its termination of his

employment and unilaterally extending his unpaid MLOA from May 2022 to October

2022.62

On August 18, 2025, Union Pacific filed its second Motion for Summary

Judgment.63 As to Walker’s FELA claim, Union Pacific argues Walker’s emotional

distress claim is not legally and factually cognizable because “the evidence shows no

objective immediate risk of physical harm.”64 Likewise, Union Pacific rejects Walker’s

FRSA claims, denying any nexus between his termination and the Incident arguing

58 [Doc. No. 80-4, p. 2].

59 As explained in the previous Memorandum Ruling [Doc. No. 45], while Walker received his right to

sue letter after filing suit, courts within the Fifth Circuit have held that “receipt of a right-to-sue letter

subsequent to the commencement of a Title VII action, but while the action remains pending cures the

initial failure to exhaust administrative remedies.” Hilliard v. Par., 991 F. Supp. 2d 769, 773 (E.D. La.

2014) (internal quotations omitted).

60 [Doc. No. 1].

61 [Id. at p. 6].

62 [Doc. No. 43-1, pp. 27–28].

63 See [Doc. No. 77].

64 [Doc. No. 77, p. 14].

that Walker’s failure to timely provide Union Pacific with medical paperwork

properly led to his discharge and unilaterally extending Walker’s MLOA until

October 2022 did not constitute an adverse employment action.65

The parties have briefed all relevant issues, and the matter is ripe for ruling.

II. Law and Analysis

A. Summary Judgment Standard

A court will grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). If the movant meets their initial burden of

showing no genuine issue of material fact, “the burden shifts to the nonmoving party

to produce evidence or designate specific facts showing the existence of a genuine

issue for trial.” Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d

703, 706 (5th Cir. 2013) (citation modified). A fact is “material” when proof of its

existence or nonexistence would affect the lawsuit’s outcome under applicable law in

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words,

“the mere existence of some alleged factual dispute will not defeat an otherwise

properly supported motion for summary judgement.” Id. at 247–48. And a dispute

about a material fact is “genuine” only if the evidence is such that a reasonable fact

finder could render a verdict for the nonmoving party. Id.

While courts will “resolve factual controversies in favor of the nonmoving

party,” an actual controversy exists only “when both parties have submitted evidence

65 [Id. at p. 17]; [Doc. No. 80, p. 10].

of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

But summary judgment is appropriate when the evidence is “merely colorable or is

not significantly probative.” Cutting Underwater Tech. USA, Inc. v. Eni U.S.

Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (citation modified).

Moreover, “a party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation modified).

Courts “may not make credibility determinations or weigh the evidence” and “must

resolve all ambiguities and draw all permissible inferences in favor of the non-moving

party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas Corp., 719 F.3d 424, 434

(5th Cir. 2013) (citations omitted).

Finally—and importantly—there can be no genuine dispute as to a material

fact when a party “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof of trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

B. FELA Claim

Union Pacific moves for summary judgment as to Walker’s negligence claim

under FELA for emotional distress related to hearing off-premises gunshots while

working in the Yard.66 FELA provides the exclusive remedy for a railroad employee

whose injury resulted from the negligence of the railroad. Rivera v. Union Pac. R. R.

Co., 378 F.3d 502, 507 (5th Cir. 2004). Pursuant to FELA, “[e]very common carrier by

66 [Doc. No. 77-1, p. 10].

railroad…shall be liable in damages to any person suffering injury while he is

employed by such carrier . . . for such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or employees of such carrier[.]” 45

U.S.C. § 51. To prevail on a FELA claim, “a plaintiff must prove: (1) the defendant is

a common carrier by railroad engaged in interstate commerce; (2) he was employed

by the defendant with duties advancing such commerce; (3) his injuries were

sustained while he was so employed; and (4) his injuries resulted from the defendant's

negligence.” Weaver v. Mo. Pac. R. Co., 152 F.3d 427, 429 (5th Cir. 1998). Under

FELA, a plaintiff's burden of proof has been described as “featherweight,” and a

plaintiff’s FELA claim should be dismissed on summary judgment “only when there

is a complete absence of probative facts” supporting the plaintiff's position.” Rivera

378 F.3d at 506; Gray v. Ala. Great So. R. Co., 960 F.3d 212, 216 (5th Cir. 2020).

Walker seeks to recover for emotional injuries.67 To recover for an emotional

injury under FELA, the Court must apply the zone of danger test. See Consol. Rail

Corp. v. Gottshall, 512 U.S. 532, 555 (1994). Under the two-pronged zone of danger

test, a plaintiff must plausibly allege that he faced an “immediate risk of physical

harm” by (1) objectively being within a zone of danger and (2) subjectively fearing

that his life or person was in danger at the time of the incident. In re Deepwater

Horizon, 841 F. App’x 675, 678-79 (5th Cir. 2021) (quoting Rail Corp., 512 U.S. at

548). The objective prong requires that “the plaintiff must be in the same location as

the accident and face immediate risk of harm to satisfy the zone of danger test.” Id.

67 [Doc. No. 1, p. 7].

Union Pacific argues the claim should be dismissed because Walker was not

objectively in the zone of danger at the time of the Incident, and therefore, Walker

cannot recover under FELA for a claim of negligent infliction of emotional distress.68

To support their argument, Union Pacific contends that Walker was protected by the

locomotive at the time of the shooting, there were no vehicles on the road when the

gunshots were heard, and Walker cannot place a bullet on the derail as occurring on

the night of the Incident.69 Union Pacific relies on the same Fifth Circuit cases this

Court previously distinguished in the first Memorandum Ruling on Union Pacific’s

Motion for Summary Judgment, In re Deepwater Horizon and Barker.70 As previously

explained, the facts of the case at hand are distinguishable from both Fifth Circuit

precedents. The plaintiffs in In re Deepwater Horizon could not satisfy the objective

prong of the zone of danger test because the plaintiffs were 100 to 200 feet away from

the explosion site and the feeling of deep rumbling sounds in the water was not

sufficient to place the plaintiffs “at the site of the accident and subsequent

explosions.” 841 F. App’x at 679. While the plaintiff in Barker was much closer to the

site of the accident, standing two feet away from where a pollution pan fell 100 feet

from a jack-up drilling rig into the ocean, the Fifth Circuit held the objective prong

was not satisfied because the plaintiff was “out of the dangerous position where

something could have happened” because he was standing on solid ground and not

going to fall. Barker, 713 F.3d at 211–12, 224.

68 [Doc. No. 77-1, p. 11].

69 [Doc. No. 77-1, p. 14].

70 [Doc. No. 45, pp. 9–10 (citing In re Deepwater Horizon, 841 F. App’x 675 (5th Cir. 2021); Barker v.

Hercules Offshore, Inc., 713 F.3d 208 (5th Cir. 2013))].

The only new evidence brought by Union Pacific in support of their position in

this Motion is testimony from Walker’s expert, William Hughes (“Hughes”). Union

Pacific argues that because Walker testified he did not hear anything but the

locomotive engine and gunshots, combined with Hughes’ testimony that he “would

expect” Walker to hear the bullet hit the derail sign, this proves Walker was not in

the zone of danger because he cannot place any bullets in the Yard or near him.71

However, the Court agrees with Walker’s position in his response to the Motion that

Hughes was not retained to serve as an audiology expert. 72 Walker retained Hughes

as an expert on industry standards for rail yard operations and security.73 Hughes’

opinion on whether or not Walker would have heard a gunshot does not discredit nor

disqualify the testimony from Walker and Ezernack along with photographic and

videographic evidence of the Incident. Walker testified he heard gunshots while

working in the Yard, and only after the gunshots did he notice the bullet hole in the

derail sign.74 Ezernack testified that he “heard several gunshots that were close by,”

because of their sound.75 The derail sign from the Yard shows damage from a bullet.76

The TIR video footage captures Walker walking outside of the locomotive and a car

slowly driving out of frame seconds before the gunshots rang out.77 All this evidence

satisfies the objective prong by placing Walker in the same location as the Incident

71 [Doc. No. 77-3, p. 22 at ¶¶ 10–11]; [Doc. No. 77-14, p. 12 at ¶ 22].

72 [Doc. No. 79-1, p. 15].

73 [Doc. No. 53-1, at p. 1].

74 [Doc. No. 43-3, at p. 3 ¶ 6].

75 [Doc. No. 77-10, p. 6, at ¶¶ 9, 22–23].

76 [Doc. No. 43-7, pp. 2–3].

77 [Doc. No. 77-5, p. 1- Exhibit C- TIR Video from Locomotive on Flash Drive at 11:29:15-30 p.m. C.S.T.].

and facing an immediate risk of harm. See In re Deepwater Horizon, 841 F. App’x at

678–79.

After a careful consideration of the record, this Court finds that there is not “a

complete absence of probative facts” to support Walker’s position. Rivera, 378 F.3d at

506; Gray v. Ala. Great So. R. Co., 960 F.3d 212, 216 (5th Cir. 2020). Following the

Supreme Court’s analysis that “a near miss may be as frightening as a direct hit,” the

bullet hole in the derail sign was allegedly just above Walker’s head at the time of

the Incident.78 Rail Corp., 512 U.S. at 547. If the bullet hole hit the derail sign during

the Incident, then Walker was well-within the zone of danger. The combination of

testimony from Walker and Ezernack, photographic evidence of bullet holes on the

derail sign, and TIR video is enough to satisfy Walker’s featherweight burden for

summary judgment purposes. For these reasons, Union Pacific’s motion for summary

judgment is DENIED to the extent that it seeks dismissal of Walker’s FELA claim.

C. FRSA Whistleblower Claim

Union Pacific moves for summary judgment on Walker’s retaliation claims

under FRSA arguing Walker cannot establish that his protected activity of reporting

the Incident was the contributing factor to the adverse personnel action. Further,

Union Pacific argues that Walker would have been terminated anyway for failing to

provide medical documentation to secure or extend MLOA.79 FRSA prevents a

railroad carrier from discharging, demoting, suspending, reprimanding, or in any

other way discriminating against an employee for engaging in protected activity or

78 [Doc. No. 77-3, p. 23].

79 [Doc. No. 77-1, p. 15].

refusing to work when confronted by a hazardous condition. 49 U.S.C. § 20109(a),

(b)(1). “An action brought to enforce these protections ‘shall be governed by the legal

burdens of proof set forth in [49 U.S.C. §] 42121(b).’” Yowell v. Admin. Rev. Bd.,

United States Dep’t of Lab., 993 F.3d 418, 421 (5th Cir. 2021) (quoting 49 U.S.C.

§ 20109(d)(2)(A)(i)). Under the burden-shifting standard, the plaintiff must establish

by a preponderance of the evidence: (1) he was involved in a protected activity; (2) the

employer was aware that the employee was involved in a protected activity; (3) the

employee was subjected to an unfavorable employment action; and (4) the protected

activity was a “contributing factor” in the unfavorable employment action. Id. at 421–

22. A contributing factor is defined by the Fifth Circuit as “any factor, which alone or

in combination with other factors, tends to affect in any way the outcome of the

[employer’s] decision.” Id. at 422. Even a protected activity’s slightest influence will

invalidate the employer’s adverse action. Id. at 427.

Walker alleges two separate retaliatory adverse actions: (1) Union Pacific

terminated Walker’s employment soon after Walker reported the Incident and

refused to continue working in the hazardous safety or security conditions at the

Yard, and (2) Union Pacific refused to allow Walker to return to work for several

months after reversing its termination of his employment by unilaterally extending

his unpaid MLOA from May 2022 to October 2022.80 Each will be addressed in turn.

80 [Doc. No. 79-1, p. 26].

1. Termination of Walker’s Employment

It is undisputed that Walker engaged in a protected activity of reporting the

Incident, Union Pacific was aware of the protected activity, and that Union Pacific

terminated Walker’s employment. The only dispute is whether Walker’s protected

activity was a contributing factor to his termination. Union Pacific argues that

Walker’s protected acts were not a contributing factor to Walker’s termination and

that Walker would have been terminated regardless of his protected acts.81 Walker

conversely argues his protected activities did contribute to his termination.82

Union Pacific claims Walker’s termination was in accordance with the terms

of his collective bargaining agreement which provides automatic termination when

an employee is absent without proper leave.83 Upon granting his medical leave on

March 25, 2022, Walker received explicit instruction from EAP advising him multiple

times that it is the employee’s responsibility to submit provider documentation to

“secure, extend Medical Leave, or Return to Work” and failure “to provide

documentation to extend your medical leave” could lead to his MLOA being revoked

or a show cause process that could end with an AWOL determination.84 He was

instructed the provider documentation must be submitted within 30 days of his

leave.85 This documentation rule was not unique to Walker’s situation, but rather

standard Union Pacific policy.86 While Walker attempts to shift the responsibility of

81 [Doc. No. 77-1, pp. 16, 20].

82 [Doc. No. 79-1, p. 20].

83 [Doc. No. 77-1, p. 18].

84 [Doc. No. 77-8, pp. 2, 4].

85 [Id. at p. 3].

86 [Doc. No. 77-13, p. 2 at ¶ 8 (“UP medical leave policy makes it the employee’s responsibility to submit

medical documentation within 30 days of the leave.”) (emphasis added)].

submitting provider documentation to Union Pacific by presenting emails from

Reimers and Franklin discussing another employee, the argument fails because the

emails merely show Franklin reached out to Reimers with documentation and

Reimers clarified what was needed to adhere to EAP standards.87 The email reaffirms

it is the employee’s responsibility to begin the process. Union Pacific’s Policy for

Managing Agreement Professionals for Success (“MAPS”) explicitly states

overstaying a leave of absence without authority is subject to dismissal action.88

Furthermore, the MAPS’ FAQs section states an employee can be terminated for

being absent without authority or leave, pursuant to the terms and conditions of the

employee’s controlling collective bargaining agreement.89 Walker was terminated

because he failed to submit supporting medical documentation within 30 days of

medical leave.90

In the previous memorandum ruling, this Court questioned Chelette’s role in

Walker’s termination for two reasons: Walker confided in Chelette about his

reporting of the Incident, and Chelette emailed Tegeder on May 16, 2022, the day of

Walker’s termination.91 However, Chelette is not a part of Union Pacific

management, he serves as the union representative for the local SMART union, which

Walker is a member of.92 Chelette was copied on Walker’s termination letter in his

capacity as the union representative.93 Chelette has no decision making power

87 [Doc. No. 43-15, pp. 2–3].

88 [Doc. No. 38-11, p. 6].

89 [Id., at p. 9].

90 [Doc. No. 77-13, p. 2 at ¶ 8].

91 [Doc. No. 45, p. 14].

92 [Doc. No. 43-5, p. 87 at ¶ 14]. The SMART union was previously named UTU [Doc. No. 77-1, p. 19].

93 [Doc. No. 77-13, p. 5]; [Doc. No. 43-5, p. 109 at ¶¶ 12–22].

regarding employment action taken against Walker, and only communicated with

Union Pacific after Walker’s termination letter was issued to inquire about

reinstating Walker.94 Tegeder, in his capacity as Union Pacific’s Manager of Safety

and Reporting, controls the process for employees who are absent without proper

leave or AWOL.95 On May 14, 2022, Tegeder received his usual electronic report of

employees to be reviewed for potential AWOL.96 Tegeder reviews the electronic report

to see when the medical leave was initiated, and if there is no supporting medical

documentation, then he places the employee in AWOL status if the applicable

reporting deadline has passed.97 The process and result is uniform for every employee

with an automatic termination provision in their contract: an electronic report of the

employees who have overstayed their medical leave are reviewed by Tegeder for

potential AWOL status, Tegeder places employees into AWOL status once he

confirms the medical leave has indeed been overstayed, and the employee is issued a

termination letter if they have an automatic termination provision in his or her

collective bargaining agreement.98 Walker’s SMART- TD Texas and Pacific Union

collective bargaining agreement has a self-terminate clause that provides for

automatic termination of the employee if the employee becomes AWOL after 30

days.99

94 [Doc. No. 43-5, p. 109 at ¶¶ 12–25].

95 [Doc. No. 77-13, p. 1 at ¶ 3].

96 [Id. at pp. 1–2 at ¶5].

97 [Id. at p. 2 at ¶ 6].

98 [Id. at pp. 1–3 at ¶¶ 5–8, 12; p. 6].

99 [Id. at p. 3 at ¶10].

This process of marking up an employee to AWOL status and issuing a

termination letter in accordance with their collective bargaining agreement is carried

out wholly separate from, and without consideration of, the reason the employee is

on leave.100 In fact, Tegeder has “no knowledge whatsoever” of the reason any

employee is on medical leave.101 This is consistent with Reimer’s email to Walker

detailing instructions to secure his MLOA where it states “employee’s information is

confidential within the EAP program and the company only finds out that their leave

is protected or if they are Ready to Work or not.”102The electronic report identifying

potential AWOL employees does not include the reason for an employee’s MLOA; it

only provides the leave start date, anticipated end date, and the employee’s union

code.103

Walker incorrectly attempts to categorize Courtni Thomas (“Thomas”), who

serves as Superintendent of Train Operations for Union Pacific, as having decision-

making authority regarding Walker’s employment.104 Walker relies on the holding in

Taylor v. Union Pacific R.R. Co., Inc. where the court found the decision maker’s

direct knowledge of the protected activity is not required, but rather it is sufficient

for the decision maker to have actual or constructive knowledge. No. 18-1110-SDD-

EWD, 2021 WL 952410, at *6 (M.D. La. Mar. 12, 2021). In Taylor, Mark Wheeland,

the Assistant Vice President of Track Maintenance, was the sole decision maker in

100 [Id. at ¶ 9].

101 [Id.].

102 [Doc. No. 77-8, p. 5].

103 [Doc. No. 77-13, p. 4].

104 [Doc. No. 79-1, p. 25].

plaintiff’s termination and based the decision off information that was provided by

Jacob Gilsdorf (“Gilsdorf”), plaintiff’s supervisor. Id. at *2, *6. Because Gilsdorf had

direct knowledge of plaintiff’s protected acts and communicated the acts to Wheeland,

the Taylor court found Wheeland had constructive knowledge. Id. at *6.

However, the case at hand is distinguished from Taylor because Tegeder did

not have direct or constructive knowledge of Walker’s protected activity when the

termination letter was issued.105 Walker’s Safety Hotline report made on March 28,

2022, lists Thomas as the primary owner and Embras as the secondary owner.106

Embras handled the report, noting Union Pacific “will add black security fence lining

to the fence currently at Hollywood [Yard], add signs, and additional cameras to

monit[or].”107 While the initial interrogatories answered by Union Pacific state

Thomas may have been involved in the process to remove Walker from the work

schedule,108 Thomas testified she was not involved with Walker’s “EAP, medical

leave, subsequent AWOL, termination, or return-to-work process.109 Unlike in

Taylor, Tegeder did not have direct or constructive knowledge of Walker’s protected

activity and made the decision to terminate Walker based-off a computer-generated

report stating Walker overdue to submit medical documentation and his collective

bargaining agreement’s self-termination clause.110 Since Walker has failed to

demonstrate Tegeder was aware of his protected activity, Walker cannot establish a

105 [Doc. No. 77-13, p. 3 at ¶ 9].

106 [Doc. No. 43-16, p. 2]; [Doc. No. 44-1, p. 2 at ¶ 5].

107 [Id.].

108 [Doc. No. 43-17, p. 2, at ¶ 1].

109 [Doc. No. 44-1, p. 2 at ¶ 6].

110 [Doc. No. 77-13, p. 1 at ¶ 5; p. 2 at ¶¶ 8, 10].

prima facie case of retaliation under the FRSA. See Kuduk v. BNSF Ry. Co., 768 F.3d

786, 791 (8th Cir. 2014) (finding that a plaintiff failed to satisfy the knowledge

element of his FRSA retaliation claim when the decision-makers had no knowledge

of his protected activity).

Assuming arguendo that Walker can establish a prima facie case of retaliation,

the claim still fails because Union Pacific can show by clear and convincing evidence

that they would have terminated Walker even in the absence of the protected activity.

Union Pacific argues Walker would have been terminated anyway just like any

employee who fails to submit the required medical documentation.111 Walker’s

reporting of the Incident “does not by itself shield” him from the repercussions of

violating his collective bargaining agreement. Yowell, 993 F.3d at 427. Walker

received clear instructions that it was his responsibility to update Union Pacific with

medical documentation to secure or extend his MLOA or return to work.112 Failure to

provide medical documentation prior to the deadline caused Walker to be listed on

Tegeder’s report for employees to be reviewed for potential AWOL.113 Once Tegeder

verified that Walker had failed to submit the required medical documentation and

placed him in AWOL status, the self-terminate provision in his collective bargaining

agreement took effect, resulting in his automatic termination after 30 days of being

AWOL..114 The termination clause is consistent with Union Pacific’s MAPS that

states an employee can be terminated for being absent without authority or leave,

111 [Doc. No. 77-1, p. 22].

112 [Doc. No. 77-8, pp. 2–5].

113 [Doc. No. 77-13, p. 2 at ¶ 8].

114 [Id. at p. 3 at ¶ 10].

pursuant to the terms and conditions of the employee’s controlling collective

bargaining agreement.115 Because Walker’s termination letter was administered by

Tegeder in accordance with Walker’s termination clause in his collective bargaining

agreement and without the knowledge of why Walker was taking a MLOA, Walker’s

reporting of the Incident did not influence his termination.116

The Court finds Walker has failed to make a prima facie case of retaliation

under FRSA by not showing that his reporting of the Incident was a “contributing

factor” in his termination. Even if Walker could have established his prima facie case,

as analyzed above, Union Pacific provides sufficient evidence that they would have

terminated Walker in the absence of a protected activity. As such, Union Pacific’s

Motion for Summary Judgment regarding Walker’s FRSA claim, insofar as it pertains

to his termination, is GRANTED.

2. Unilaterally Extending Walker’s MLOA

As stated above, Walker’s alleges the reporting of the Incident was a

contributing factor to the retaliatory adverse employment action of Union Pacific

unilaterally extending Walker’s MLOA.117 Walker argues he suffered an adverse

employment action because Union Pacific, after rescinding his termination, refused

to allow Walker to return to work for several months by unilaterally extending his

unpaid MLOA from May 2023 to October 2023.118 Union Pacific claims the refusal to

permit Walker to return to work constituted discipline and an adverse action under

115 [Doc. No. 38-11, p. 9].

116 [Doc. No. 77-13, p. 3 at ¶ 9].

117 [Doc. No. 79-1, p. 21].

118 [Id. at p. 26].

49 U.S.C. § 20109(c)(2).119 Walker’s OSHA complaint explicitly stated that he was

only making a claim under 49 U.S.C. § 20109(a) and (b).120 This Court ruled in Union

Pacific’s first motion for summary judgment121 that a claim under 49 U.S.C.

§ 20109(c)(2) is not administratively exhausted as it was not alleged in Walker’s

OSHA complaint.122 The Court affirms its previous ruling and therefore will not

address the merits of Walker’s 49 U.S.C. § 20109(c)(2) argument.

Therefore, Walker must demonstrate that his protected interest—reporting

the incident123 and refusing to work when confronted by a hazardous safety or

security condition related to his duties as a conductor124—was a contributing factor

to Union Pacific’s decision to extend Walker’s medical leave past May of 2022.

Union Pacific rebuts Walker’s argument maintaining that “granting and

continuing a medical leave of absence in connection with a diagnosed psychological

condition” does not fall under Section 20109(a) because Union Pacific did not

“discharge, demote, suspend, reprimand, or in any other way discriminate.”125

Moreover, Union Pacific argues the unilateral extension of medical leave was not an

unfavorable employment action under Yowell because Walker avoided any financial

hardship because Union Pacific helped him secure, and he received, disability and

RRB benefits during the MLOA.126 993 F.3d at 421–22. However, Walker explained

119 [Id. at p. 27].

120 See [Doc. No. 80-4, pp. 3–5].

121 [Doc. No. 45, p. 15].

122 See [Doc. No. 44-4].

123 See 49 U.S.C. § 20109(a)(4).

124 See 49 U.S.C. § 20109(b)(1)(B).

125 [Doc. No. 80, p. 10].

126 [Doc. No. 80-2].

in his declaration that despite being on railroad board disability benefits, he

“experienced financial hardship while being forced to remain on medical leave and

without income.”127 The Court relies on the Administrative Review Board (“ARB”) of

the United States Department of Labor’s ruling in Fricka v. Nat’l R.R. Passenger

Corp., where the ARB sought to clarify what qualified as an adverse employment

action under FRSA. ARB No. 14-047, 2015 WL 9257754, at *3–4 (ARB Nov. 24, 2015).

The Fricka decision explained “the FRSA statute and regulations appear to be very

broad in their conception of what ‘adverse action’ is” noting the statute does not limit

prohibited employer conduct to changes to employee’s compensation or terms of

employment, but instead prohibits employers from “discharg[ing], demot[ing],

suspend[ing], reprimand[ing], or in any other way discriminat[ing]” against an

employee for engaging in protected activity. Id. at *2 n. 24, *4. While Walker received

railroad board disability benefits during his extended MLOA, the Seventh Circuit has

ruled that a plaintiff suffered an adverse employment action when he was placed

involuntarily on disability leave even though he received “the equivalent of his old

salary (through a combination of social security and disability payments) while on

disability leave.” Timmons v. General Motors Corp., 469 F.3d 1122, 1128 (7th Cir.

2006). The Timmons court explained “[m]oney is not the exclusive measure of adverse

employment actions” and “significantly diminished material responsibilities… may

indicate an adverse employment action.” Id. While the record in the case at hand does

not detail the amount of railroad board benefits, Walker suffered financial hardship

127 [Doc. No. 43-3, p. 6 at ¶ 17].

when he was unable to return to work.128 Moreover, there is no doubt Walker’s

material responsibilities were diminished when Union Pacific unilaterally extended

his MLOA and continued to hold Walker in HP status.129 See id. at 1128. Thus, Union

Pacific unilaterally extending Walker’s MLOA from May 2022 to October 2022

qualifies as an adverse employment action.

Moving on the to fourth factor under Yowell, the parties disagree whether

Walker’s protected activity was a contributing factor to unilaterally extending his

MLOA. Union Pacific argues that Walker’s protected acts were not a contributing

factor to Walker’s termination and that Walker would have been terminated

regardless of his protected acts. Walker conversely argues his protected activities did

contribute to his termination. However, Union Pacific fails to explain why they

ignored medical documentation listing Walker as ready to return to work as early as

May 2022, despite Franklin noting Walker presented an “euthymic affect and

optimistic mood” and expressed enthusiasm to get back to work beginning in June

2022.130

On May 23, 2022, Walker’s counselor, Franklin, submitted his medical

paperwork to the EAP, resulting in Union Pacific’s removal of AWOL status and

revocation of his termination.131 In Frankin’s medical notes, he estimated Walker’s

return to work date as “[i]mmediately.”132 However, the EAP case report does not note

128 [Doc. No. 43-3, p. 6 at ¶ 17].

129 [Id.].

130 [Id. at p. 14].

131 [Doc. No. 43-10, p. 2]; [Doc. No. 77-12, at p. 3].

132 [Doc. No. 80-4, p. 11].

Franklin’s suggested return to work date in their records.133 Under the initial MLOA

instructions emailed to Walker, it is Reimers responsibility to “report [Walker’s]

medical leave status to the company.134 Union Pacific argues in their Reply to Motion

for Summary Judgment,135 the MLOA instructions informed medical providers that

the documentation provided to EAP would be “reviewed” meant that UP’s Health and

Medical Services Department would also have to clear Walker before he could return

to work.136 Union Pacific fails to provide a citation to the guidelines stating UP’s

Health and Medical Services Department would need to clear Walker. See Skotak v.

Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir. 1992). (“Rule 56 does not impose

upon the district court a duty to sift through the record in search of evidence to

support a party's opposition to summary judgment[.]”). When Walker’s AWOL status

was removed and he was reinstated into HP status, Johnson explained Walker would

not be released to work because Franklin’s documentation did not release him to

ready to work status.137 In fact, the EAP Case Report details the only provider note

indicating Walker was ready to return to work was received on October 18, 2022.138

Despite Franklin estimating on every progress note sent to the EAP that Walker’s

estimated return to work date was immediate, Walker’s MLOA was extended by EAP

three times.139 Neither Walker nor Franklin requested an extension of his medical

leave of absence past May 2022. The EAP report shows Walker’s target return-to-

133 [Doc. No. 77-12, p. 3].

134 [Doc. No. 77-8, p. 2]

135 [Doc. No. 80, p. 8].

136 [Doc. No. 77-8, p. 4].

137 [Id. at p. 13].

138 [Doc. No. 77-12, p. 2].

139 [Doc. No. 43-10, pp. 2, 4, 6, 9, 13]; [Doc. No. 77-12, pp. 2–3].

work date of August 29, 2022, but the date was extended two more months by EAM

despite Franklin’s provider documentation sent in July recommending Walker’s

return to work date was immediate.140 As a result of being placed on unpaid leave

between May 2022 and October 2022, Walker suffered financial hardship due to lack

of income.141

Although Union Pacific maintains Walker’s protected activity was not a

contributing factor in Union Pacific’s decision to delay Walker’s return to work, the

factual record suggests the possibility that Reimer’s knowledge of the Incident may

have played a role in the unilateral extension of Walker’s MLOA.142 Reimers knew

Walker engaged in protected activity when he spoke to Walker days after the alleged

shooting.143 As it was Reimers’ job to report Walker’s medical leave status to the

company, and Walker could not return to work until his medical leave status released

him to work, there is a genuine dispute as to whether the Incident played a role in

extending his medical leave when his counselor consistently indicated that he could

return to work immediately.144 For these reasons, Union Pacific’s Motion for

Summary Judgment is DENIED to the extent that it seeks dismissal of Walker’s

FRSA claim regarding extending Walker’s unpaid leave.

140 [Doc. No. 77-12, pp. 2, 4]. The Record does not show whether Franklin’s July provider

documentation was received and purposely left off Walker’s EAP case report or if it was never sent to

EAP [Doc. No. 80-4, p. 15].

141 [Doc. No. 79-1, p. 12].

142 [Doc. No. 80, p. 8].

143 [Doc. No. 77-12, p. 5].

144 [Doc. No. 77-8, p. 2 (“It is [Reimers’] job to report [Walker’s] medical leave status to the company.”)];

[Id. at p. 13].

III. Conclusion

For the reasons stated above,

IT IS ORDERED that Union Pacific’s Motion for Summary Judgment [Doc.

No. 77] is DENIED IN PART and GRANTED IN PART.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Union

Pacific’s Motion regarding Walker’s FRSA claim, insofar as it pertains to his

termination, is GRANTED.

IT IS FURTHER ORDERED that Union Pacific’s Motion regarding

Walker’s FRSA claim, insofar as it pertains to Union Pacific’s extension of Walker’s

MLOA, is DENIED.

IT IS FURTHER ORDERED that to the extent that the Motion seeks

dismissal of Walker’s FELA claim, the Motion is DENIED.

MONROE, LOUISIANA, this 20th of November 2025.

ARRY A. DOUGHT ()

UNI STATES DISTRICT JUDG

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