A federal judge recently denied the railroad’s request to dismiss a lawsuit filed by James T. Norvell, a Ballard resident, and scheduled a trial for later this year.
A former engineer for BNSF Railway now working and living in Ballard claims in a federal whistleblower lawsuit that he was fired for damaging company property after he was forced to throw a runaway locomotive into reverse to avoid a potentially catastrophic accident in Portland in 2015.
A federal judge in Tacoma earlier this month denied a motion by the railroad to dismiss the lawsuit filed in August by James T. Norvell, finding that Norvell’s claims at this point give him standing to sue over his contention that he was improperly fired for discharging a public duty — protecting the lives of citizens and employees in and around the Willbridge rail yard in Portland on July 12, 2015.
According to the lawsuit, Norvell was a 13-year veteran engineer who was assigned to drive Locomotive 2339 and 22 freight cars between two connected BNSF rail yards, called the Lake Yard and the Willbridge Yard. Both are located along the Willamette River.
Norvell was at the controls of a train heading into the Willbridge Yard, within the speed limit, when “locomotive 2339 did not respond to Norvell’s efforts to slow,” according to the lawsuit.
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The lawsuit claims that the tracks within the yard “are unique in that they all run downhill.”
According to the suit, Norvell was aware there were others working around him and “knew there were loaded hazardous tank cars at the bottom of the yard and parked in a manner roughly broadside to the direction of travel of his train.”
Moreover, the lawsuit notes, the Willbridge Yard is surrounded by petroleum and chemical tank farms.
“If he could not stop the train, Norvell would have put the lives of his co-workers in peril and likely would have caused an enormous explosion and/or spill of hazardous materials that would have put the public at large in danger,” according to the lawsuit.
“With no other option to stop the train in time to avoid catastrophe, Norvell threw the throttle into reverse and was able to bring the train to a safe stop,” the lawsuit said.
The result, however, was that the locomotive sustained serious damage.
Four days after the incident, according to the lawsuit, Norvell was notified that BNSF had initiated disciplinary proceedings against him because he had “failed to properly stop your movement in accordance with proper train handling,” resulting in damage to the locomotive.
At a hearing a month later, Norvell presented evidence — in the form of an affidavit and testimony of a BNSF locomotive mechanic identified as Warren Stout — about shortcomings at the Vancouver, Washington, BNSF maintenance facility where Locomotive 2339 had recently been serviced.
Norvell also provided maintenance logs showing the locomotive “had brake rigging defects that had not been properly addressed despite multiple reports of the problem and multiple trips to the BNSF locomotive facilities in Vancouver and Seattle” before the July 12 incident at Willbridge Yard, according to the lawsuit.
Stout, according to the lawsuit and the sworn affidavit, concluded that BNSF’s “Band-Aid” approach to maintenance and its “refusal to authorize proper repairs to locomotives, including 2339, had resulted in a ‘fleet of substandard and noncompliant locomotives haunting the area.’ ”
One of Norvell’s attorneys, Jeff Dingwall, of San Diego, said the railway “chose to blame him instead of owning up to the fact” of the maintenance problems.
Sonja Fritts, a Seattle lawyer representing BNSF, declined to comment Thursday on the allegations and referred inquiries to BNSF Railway spokesman Gus Melonas, who said the railroad had no comment.
However, in its answer to Norvell’s complaint, filed with the court on Wednesday, the railway denied all of Norvell’s substantive claims, up to and including his allegations that the public was in danger, that a catastrophe was averted, and that the tracks at the Willbridge Yard slope downhill.
In seeking to dismiss the claim outright, BNSF argued that the company’s collective-bargaining agreement with the engineer’s union governs his dismissal and that Norvell’s case doesn’t belong in federal court.
U.S. District Judge Benjamin Settle disagreed and set a trial date for Sept. 17, although it is likely that will be delayed. In the meantime, both sides will proceed with discovery and depositions.
“It is clear that railroad employees such as plaintiff have important rights and duties under public policy that are protected independently of the [collective-bargaining agreements governing] their labor relations,” Settle wrote.
“For instance, [the law] expressly provides a cause of action for railroad employees who suffer retaliation for reporting railroad hazards and misconduct by railroad carriers,” the judge said.
Norvell now works as an engineer at the Ballard Terminal Railroad.