Tubious Shipp, who worked for BNSF for more than fifteen years, filed suit under the Federal Railroad Safety Act after his termination and suspension. The dispute centers on whether Shipp’s protected activity—reporting a safety violation—contributed to the adverse personnel actions taken against him.

The conflict began on July 7, 2023, when Shipp discovered an outbound train had not been tied down with sufficient handbrakes. He reported the concern to his supervisor, Katherine Pink, and sent her a video recording of the train. The video inadvertently captured Shipp operating a motor vehicle while using an electronic device.

Pink forwarded the video to general foreman Christopher Covey, believing it showed a serious safety rule violation. During a subsequent meeting, Covey requested that Shipp submit to a drug test. Shipp alleges he responded with profanity, stating he was tired of being targeted for reporting a safety violation.

BNSF initiated formal disciplinary proceedings based on alleged violations of its Mechanical Safety Rules, specifically prohibiting driving while handling electronic devices and being discourteous. Following hearings, Policy for Employee Performance Accountability Director John Murphy recommended dismissal, and Mahoney made the final decision to terminate Shipp on August 10, 2023.

Shipp argued that the drug test, suspension, and termination were retaliatory responses to his initial report of the untied train. BNSF contended that Shipp was fired solely for violating internal policies regarding device usage and conduct, not for his protected activity.

U.S. District Judge Brian C. Lea denied the motion, finding that Shipp presented sufficient evidence to create a jury issue on whether his protected activity was a contributing factor to the adverse actions. The court noted that testimony suggested drug testing was not a standard result for safety violations alone, undermining BNSF’s claim that the test was routine.

Regarding the suspension and termination, the court observed that BNSF failed to prove by clear and convincing evidence that it would have taken the same actions absent Shipp’s protected conduct. The record contained conflicting testimony about whether the suspension was automatic and evidence that other employees with similar violations were not terminated.

The judge also denied summary judgment on Shipp’s claim for punitive damages, ruling that a reasonable jury could find BNSF’s conduct sufficiently blameworthy. The case will now proceed to trial.