Tubious Shipp worked for BNSF as a carman for more than fifteen years. On July 7, 2023, he found that an outbound train had not been tied down — a safety requirement under both company rules and federal regulations — and reported the concern to his supervisor, Katherine Pink. He also recorded a video of the train on his phone and sent it to her. That video showed Shipp using an electronic device while operating a motor vehicle, which Pink forwarded to general foreman Christopher Covey. What followed was a drug test demand, a heated exchange between Shipp and Covey, two formal disciplinary hearings, and ultimately Shipp's termination on August 10, 2023, for violations of BNSF's Mechanical Safety Rules covering unsafe vehicle operation and discourteous conduct.
BNSF conceded for purposes of the motion that Shipp engaged in protected activity and that it knew about it. The railroad's core argument was that it fired Shipp for legitimate safety rule violations — using a phone while driving and being discourteous to Covey — not for his safety report. The court held that genuine disputes of material fact preclude summary judgment on both the prima facie case and BNSF's affirmative defense.
On the contributing-factor element, the court held that Pink's testimony — from which a jury could conclude that drug testing was not a standard response to a safety violation — combined with the close temporal proximity between Shipp's report and the drug test, was enough to create a jury question. The court further held that if the protected activity contributed to the drug test, a jury could reasonably conclude it also contributed to the suspension and termination that followed.
BNSF's same-action affirmative defense fared no better. The court applied a multi-factor framework and acknowledged that several factors favored BNSF: it followed investigatory procedures, senior management approved the dismissal, and the non-protected conduct carried independent significance. But the court identified record evidence cutting the other way. A union representative testified that Covey had already decided to remove Shipp from service before the drug-test confrontation occurred. Pink's own testimony did not support BNSF's claim that suspension automatically follows any investigation of rule violations. And the record contained evidence that other employees who committed similar rule violations were not terminated — comparator evidence that, the court held, BNSF bore the burden of addressing under the clear-and-convincing standard rather than shifting that burden to Shipp.
The court also denied summary judgment on punitive damages, holding that a jury could find, viewing the record in Shipp's favor, that BNSF retaliated against him for protected activity and hid its actions behind claimed safety violations that would not independently have led to the adverse personnel actions he suffered.
The case, docketed as 2:25-cv-02084, proceeds toward trial.