MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

AVERN COHN, District Judge.

I. Introduction

This is an employment case. Plaintiff Steven L. Moss (Moss), an African-American, was employed by defendant Norfolk Southern Railway Company (NSR) as a locomotive engineer. He says he has been discriminated because of his race and that he was injured by exposure to toxic fumes. Moss makes claims under Michigan's Elliot Larsen Civil Right Act, M.C.L. § 37.2101, et seq., Title VII, the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq., and the Locomotive Safety Act, also known as the Boiler Inspection Act, (BIA) 49 U.S.C. § 20701, et seq.

Before the court is NSR's motion for summary judgment on all of Moss' claims. NSR says that Moss' race discrimination claim is preempted, and alternatively that he cannot establish a prima facie case of race discrimination. NSR also says that Moss has failed to establish a claim under either FELA or the BIA because there is no evidence that he suffered a physical injury or that the locomotive engine Moss was working on at the time he was exposed to the fumes was defective.

For the reasons that follow, the motion is GRANTED and this case is DISMISSED.

II. Background

The material facts as gleaned from the parties' papers follow:

A.

On November 26, 2001, at about 7:00 a.m., Moss boarded locomotive engine 5006 along with conductor McKinley James (James), also African-American. Moss and James smelled fumes in the cab of the engine. Moss opened the windows to let the cab air out and Moss and James exited the engine. Moss and James then left to notify Yardmaster Jim Eggleton via an intercom system which was located in a shanty. Eggleton apparently left it up to Moss and James to decide whether to continue working. When Moss and James re-boarded the cab about thirty minutes later, Moss says the engine still "had an odor to it" and that they left the doors and windows open and continued to work.

Moss says that when he stood up to take a break at about 11:00 a.m., he felt dizzy and his "heart started beating kind of fast." He also said he felt like he was going to pass out. James said he did not feel dizzy or nauseous, but "just different."

Moss and James then decided to head back to the shanty, which took about 20 minutes. Once there Moss called John Elswick the Assistant Trainmaster to tell him he and Moss smelled fumes in the cab of the engine they were working on which made them ill. Elswick notified Superintendent Stephen Ewers and Assistant Terminal Superintendent Michael Giles. Moss completed a Personal Injury Report form in which he requested medical treatment. He describes his injury as follows:

While working LO53 Engine 5006 I inhaled some bad fumes from the engines, which in turn made me feel sick, light headed, dizzy, nausea, off balance, and jittery and my heart rate increase and chest got tight

Ewers arrived at the shanty about 11:30 a.m. and took Moss and James to Concentra Medical Center.

Moss was examined at the medical center by Dr. Christopher Galus. Ewers completed an Activity Status Report, diagnosing Moss with "toxic effect of unspecified gas, fume or vapor." He indicated that Moss could return to work the next day but to "follow up" before returning.

Before leaving the medical center, Ewers says he told Moss and James to contact him if either planned to seek further medical attention or if they would be unable to return to work the next day. Moss, however, says that Ewers said to contact him only if Moss planned to seek medical attention later that same day.

Later that afternoon, Moss called Ewers to inform him that he was in the emergency room at Harper Hospital. Moss apparently recited the events of the incident to hospital personnel and complained of a headache, for which he was given Tylenol. A Harper Hospital Emergency Discharge Dictation report states in part that Moss breathing and pulse were normal and he was alert and oriented. It concludes that "patient's exam was normal." "On re-exam, the patient has had relief of his headache. He has no complaints at this time. He is stable for discharge." "He is instructed that if he develops any new or worsening symptoms, he is to return to the emergency department. The patient is discharged in satisfactory condition."

A Medical Records Report from Harper Hospital essentially concludes the same — that Moss' examination was normal.

The next morning, Moss went to his personal physician, Dr. Maddox. He did not tell Ewers before doing so. Dr. Maddox's records are not in the record.

Moss contacted Ewers that evening, telling him that he had gone to his personal physician and that he was going to "mark off" because he was still feeling the effects of the incident. Moss also told Ewers that Dr. Maddox referred him to a pulmonary specialist. Upon hearing this, Ewers decided to pull Moss from service until a complete evaluation of his condition was performed.

The results of Moss' visit with a pulmonary specialist are not known — there is no record of it before the Court. When asked at deposition whether the pulmonary specialist found the presence of carbon monoxide or other toxic fumes in his system, Moss replied "not that I can recall;" he testified that Dr. Maddox said there was some problem with his breathing.

Ewers contacted Paula J. Lina, M.D., NSR Associate Medical Director, regarding Moss' condition. Dr. Lina reviewed the reports from the medical center and Harper Hospital. She wrote to NSR on December 18, 2001, stating:

In my opinion, Mr. Moss' complaints of November 26, 2001 are not related to carbon monoxide exposure due to the fact that Mr. Moss' carboxyhemoglobin levels of November 26th were normal. An individual experiencing a headache or other symptoms from carbon monoxide exposure would have abnormal carboxyhemoglobing levels, typically in the range of 10% or greater. Abnormal carboxyhempglobin levels are detectable in the blood for many hours after exposure ends. Mr. Moss's normal carboxyhemoglobin levels, in my opinion, rule out carbon monoxide exposure as an explanation for his symptoms on November 26th.

I additionally do not find it likely that Mr. Moss experienced a diesel exhaust exposure of any medical significance (e.g. that would explain his symptoms) due to the absence of any acute complaints of irritation to the eyes, nose, mouth, throat, or lungs that may be expected with such an exposure, coupled with his normal physical examinations and COHb levels as noted above.

On December 19, 2001, Dr. Galus wrote to NSR regarding Moss. Dr. Galus states in part that

[t]he physical examination did not confirm objective findings, which would be correlated with acute exposure to carbon monoxide. The central nervous system is a major target organ for carbon monoxide. I did not find patient dizzy, disoriented or having difficulty thinking. The funduscopic examination was normal. There were no visual fields defect. There was no hearing deficiency. Vitals signs were essentially normal and in case of acute exposure, I would expect tachycardia, dyspnea, and mild hypertension.

Recommendations: Given patient's normal physical examination and negative blood results for carboxyhemoglobin which was obtained within the time less that [sic] half-life of carboxyhemoglobin, I assume that this patient did not suffer exposure to carbon monoxide.

Ewers also requested an inspection of engine 5006 both from NSR's Mechanical Department and an independent inspection company. The inspection reports reported that the engine was in proper working order. The independent inspection report, performed by Clayton Group Services on November 30, 2001 (nine days after the incident), concluded:

The extremely low or non-detectable concentrations of diesel exhaust component chemicals monitored inside the cab indicate that NS Locomotive 5006 was functioning properly on the day of the testing. The potential for exposure at the documented airborne concentrations is negligible and there are no adverse health effect associated with such exposures.

NSR then charged Moss with failure to remove himself from a hazardous situation, in violation of Item 54 of the Detroit Terminal Superintendent's Notice 11.01. Apparently, when Moss and James first detected fumes in the engine, they should have removed themselves from the engine. Moss was given a 30 day suspension.

James was also charged with failure to remove himself from a dangerous situation and likewise pulled off of duty for 30 days.

Moss was also charged with conduct unbecoming an employee for his failure to follow Ewers' instructions to contact him before seeking further medical treatment and for attempting to mark off under false pretenses on November 27, 2001 (the day after the incident). Apparently, Ewers concluded based on the medical reports and the inspection reports that Moss did not suffer an injury requiring him to take off work. NSR conducted an investigation and terminated Moss on December 26, 2001 based on the charges.

However, on March 31, 2003, after Moss filed suit, NSR reinstated Moss (without pay for lost time). Moss says he plans to return to work at NSR.

B.

Moss sued NSR on August 28, 2002. Moss' complaint is in five counts. Count one claims a violation of Elliot Larsen and Title VII based on the claim that Moss "was treated differently by Defendant and its agents than were Defendant's white employees who were similarly situated." Count one claims "disparate treatment and unlawful race discrimination." Count two claims that NSR has "engaged in intentional discrimination" against Plaintiff, including discharging Plaintiff, and have done so with malice or with reckless indifference of Plaintiff in violation of Elliot Larsen and Title VII and that NSR was "predisposed to discriminate against Plaintiff because of his race." Count three claims that NSR violated the FELA by having a "defectively maintained engine" which caused him to "sustain serious injuries when he was exposed to toxic fumes, including carbon monoxide, produced by the defective engine." Count four claims that NSR violated the BIA by having a defective engine. Count five is a catch-all count, essentially claiming that if Moss was suffering from any conditions prior to November 26, the incident of November 26 aggravated those conditions.

III. Summary Judgment IV. Analysis A. Race Discrimination 1. Initial comments

As an initial matter, Moss' race discrimination claim is not well developed. Notably, Moss' Counter-Statement of Disputed Facts makes only two factual references to this claim. He identifies Ron Couch, a white male, as the similarly situated person outside of his class who was not disciplined for similar conduct. He also states that Yardmaster Eggleton, a white male, was not disciplined for failing to inspect the engine after Moss and James first reported the presence of fumes. Under the heading "Issues of Material Fact as to Which There is a Genuine Issue for Trial," Moss lists four issues for trial; none of the four relate to a claim for race discrimination.

Moreover, NSR's brief identifies four separate incidents of alleged racial discrimination which were apparently articulated at Moss' deposition. Moss does not deal with any of these incidents in his response to NSR's motion with one exception — that he was treated differently than a similarly situated white male when he was terminated. Thus, the Court assumes that Moss' race discrimination claim — which is reflected in two counts of the compliant — is a claim of disparate treatment under Elliot Larsen and Title VII.

2. Preemption

NSR argues that Moss' disparate treatment claim is preempted by the Railway Labor Act (RLA), 45 U.S.C. § 151-188 and relies on the recent unpublished opinion of the Court of Appeals for the Sixth Circuit's inDotson v. Norfolk Southern Railway Co., 2002 WL 31684784 (6th Cir. Nov. 22, 2002) (unpublished).

Where resolution of a state law claim requires interpretation of a CBA, such claims are preempted by the RLA. "Under the RLA, disputes are separated into two distinct categories: major disputes and minor disputes." Airline Prof'ls Ass'n of the Int'l Bhd. of Teamsters v. ABX Air, Inc., 274 F.3d 1023, 1027-28 (6th Cir. 2001). Where a claim is resolved by interpreting the terms of the CBA, it is a minor dispute. See id. at 1028. "Where the dispute concerns rights that do not already exist under the collective bargaining agreement, but rather constitutes an attempt to create new rights, it is a major dispute." Id. The RLA requires that minor disputes be submitted through the grievance procedures described in the CBA. See Andrews v. Louisville N.R. Co., 406 U.S. 320, 322 (1972) (grievance procedures of the collective bargaining agreement are the mandatory and exclusive means of settling minor disputes). "If the parties cannot resolve minor disputes on their own, they are submitted to the National Railroad Adjustment Board for final resolution. . . .The Board has exclusive jurisdiction over minor disputes, and a party cannot bypass the Board and take the dispute into federal court, except to enforce the Board's award." CSX Transp., Inc. v. Marquar, 980 F.2d 359, 361 (6th Cir. 1992) (internal citation omitted).

In Dotson, the plaintiff, an African American female, sued her employer, NSR, claiming in part that she was denied positions because of her race and was subjected to disparate discipline because of her race. She also claimed racial harassment. The Sixth Circuit found that the plaintiff's racial discrimination claim based on disparate treatment (but not her racial harassment claim) was preempted by the RLA. The court explained:

Whether or not Plaintiff was disciplined more harshly [than other employees] or . . . should have been disciplined at all, depends upon an interpretation of the CBA regulations regarding discipline. In addition, whether or not Plaintiff should have been allowed to sit at the front desk, depends on the CBA provisions regarding seniority and regarding who could "fill in" there when needed. Lastly, whether or not Plaintiff was entitled to a position as a clerk stenographer depends on the CBA requirements regarding typing tests and qualification. In other words, in order to dispose of Plaintiff's claims, the Court will need to look at more than just Defendants' motives.

Here, as in Dotson, Moss' disparate treatment claim — that he was discharged for the same conduct when a white employee was not — depends on interpretation of the CBA regulations regarding disciplines. Under Dotson, Moss' claim is preempted.

3. Prima Facie Case a.

Alternatively, even assuming that Dotson is not controlling, NSR argues that Moss has failed to make out a prima facie case of race discrimination based on disparate treatment. Disparate treatment claims under Elliot Larsen are analyzed the same way as claims under Title VII.See Pitts v. Michael Miller Car Rental, 942 F.2d 1067, 1070 (6th Cir. 1991) (finding a prima facie case of disparate treatment under Elliot Larsen); see also Jenkins v. Southeastern Mich. Chapter, Am. Red Cross, 369 N.W.2d 223, 227 n. 2 (Mich.App. 1985). "To prevail on a claim of disparate treatment a plaintiff must show that her employer intentionally discriminated against her." Lynch v. Freeman, 817 F.2d 380 (6th Cir. 1987); see also Huguley v. General Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995). Intent can be established by proof of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were `based on a discriminatory criterion illegal under the Act.'" Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)); see also Shah v. General Elec. Co., 816 F.2d 264, 267 (6th Cir. 1987) (stating that proof of discriminatory motive can be inferred from differences in treatment). A plaintiff must show that discriminatory intent is the actual motive, "not a legal presumption to be drawn from a factual showing of something less than actual motive." Pullman-Standard v. Swint, 456 U.S. 273, 289-90 (1982).

Here, because there is no direct evidence of discrimination, the framework for analyzing cases supported by circumstantial evidence established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by Michigan courts, applies. See Dubey v. Stroh Brewery Co., 462 N.W.2d 758, 759 (1990) (per curiam). In this framework, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802.

A plaintiff may establish an initial prima facie case of discrimination by proving that (1) the plaintiff is a member of a protected group, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was replaced by a person outside of the protected class. Id. If the plaintiff succeeds in establishing a prima facie case, which creates a presumption that the defendant unlawfully discriminated against the plaintiff, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). However, the ultimate burden of persuasion always remains with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747-48 (1993).

If the defendant is able to articulate a legitimate, nondiscriminatory reason for its actions, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons put forth by the defendant were not its true reasons but were a mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 802. Pretext requires that the plaintiff come forward with evidence that the company's reason for the employment action is false, but he need not present independent evidence that the proffered reason is pretext for racial discrimination, but rather that the proffered reason is unworthy of belief. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000) ("[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."); Clark v. Uniroyal Corp., 327 N.W.2d 372, 374 (Mich.Ct.App. 1982) (per curiam) (citing Burdine, 450 U.S. at 255). The Michigan courts have articulated three ways in which an employment discrimination plaintiff may show that his employer's proffered reasons for dismissing him are pretext. The plaintiff may demonstrate pretext by showing: (1) that the stated reasons for his firing had no basis in fact, (2) that the stated reasons for his firing were not the actual reasons, and (3) that the stated reasons for his firing were insufficient to explain the discharge. Dubey, 462 N.W.2d at 760.

b.

Here, because Moss belongs to a protected class, his ability to make a prima facie showing hinges on his ability to show that similarly situated individuals were treated differently. Moss must produce evidence that the relevant comparable employees are "similarly situated in all respects,"Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992), however, he must show this only with regard to aspects which are relevant to the facts of the case. See Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). "[T]o be deemed `similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards, and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell, 964 F.2d at 583 (citations omitted). "These factors generally are all relevant considerations in cases alleging differential disciplinary action."Ercegovich, 154 F.3d at 352.

Moss says he was treated differently than Ron Couch, a white male, and another locomotive engineer. In November of 1998, Couch apparently became ill from fumes present on the engine upon which he was working. Couch was also taken to Concentra Medical Center. He was not disciplined for not removing himself from a hazardous situation, as Moss was, even though he apparently did not report the presence of fumes until several hours later. Couch also apparently did not tell a supervisor before seeking medical treatment.

Couch, as NSR points out, is not similarly situated. Couch and Moss had different supervisors. At the time, Couch was supervised by W.L. Stigall; Moss was supervised by Ewers. Moreover, Stigall states in his affidavit that he never told Couch to contact a supervisor before seeking medical treatment. Stigall also say he had no involvement in Moss' discharge. Moss, unlike Couch, was also charged with marking off under false pretenses. Moss and Couch are therefore not similarly situated. Moss also attempts to say that he was treated differently than Yardmaster Eggleton, to whom he first reported the presence of fumes. Apparently, Eggleton violated a NSR rule when he allowed Moss and James to continue working on the engine after reporting fumes; he should have inspected the engine at that time. Eggleton was not disciplined. As NSR points out, however, Eggleton and Moss have different job titles and responsibilities and did not engage in the same conduct.

Because Moss has failed to make out a prima facie case of race discrimination based on disparate treatment, the Court need not determine whether NSR had a "legitimate, non-discriminatory reason" for discharging Moss after finding he failed to remove himself from a dangerous situation and engaged in unbecoming conduct. Likewise, the Court need not consider whether NSA's reason is pretextual.

B. FELA 1.

45 U.S.C. § 51 provides in pertinent part:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia and any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

FELA is "a remedial and humanitarian statute . . . enacted by Congress to afford relief to employees from injury incurred in the railway industry." Mounts v. Grand Trunk W.R.R., 198 F.3d 578, 580 (6th Cir. 2000) (quoting Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir. 1973)). Congress intended FELA to be a departure from common law principles of liability as a "response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety." Aparicio v. Norfolk W. Ry. Co., 84 F.3d 803, 807 (6th Cir. 1996) (quotingSinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329 (1958)).

This circuit has held that a FELA plaintiff asserting a cause of negligence against its employer "must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation."Adams v. CSX Transp., 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)). A plaintiff must present more than a scintilla of evidence to prove that (1) an injury occurred while the plaintiff was working within the scope of his or her employment with the railroad, (2) the employment was in the furtherance of the railroad's interstate transportation business, (3) the employer railroad was negligent, and (4) the employer's negligence played some part in causing the injury for which compensation is sought under the Act. Aparicio v. Norfolk W. Ry. Co., 84 F.3d 803, 810 (6th Cir. 1996) (citing Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir. 1985)).

The Sixth Circuit recently clarified the causation component of a FELA claim:

Courts in FSAA cases (and FELA and BIA cases as well) should focus on whether a reasonable jury could conclude that the defective appliance played any part, even the slightest, in bringing about the plaintiffs injury. This means that if a reasonable jury could find that the plaintiffs injury "was within the risk created by" the defective appliance, the plaintiffs right to a jury trial should be preserved. For example, if as a result of a defective appliance a plaintiff is required to take certain actions and he or she is injured while taking those actions, the issue of causation generally should be submitted to a jury.

2.

NSR argues that Moss has not made out a FELA claim because he has not demonstrated that he was injured; rather, Moss simply asserts that he was injured by exposure to toxic fumes but offers no evidence to support this assertion. NSR say that the medical evidence of record shows that there is no genuine issue of material fact as to whether Moss suffered an injury; he did not. In response, Moss points to the medical center diagnosis of "toxic effect of unspecified gas, fume or vapor" from Dr. Galus and also relies on Moss' testimony that he experienced the effects of exposure to toxic fumes. Moss also relies on the fact that he was discharged in part for not removing himself from a hazardous situation and it is disingenuous for NSR to argue that Moss was not injured.

NSR's position is well taken. The medical evidence detailed above shows that Moss did not suffer an injury. The medical evidence does not support a finding that Moss was exposed to a hazardous level of toxic fumes. Moreover, simply because Moss was charged with a failure to remove himself from a hazardous situation does not mean that Moss was in fact injured as a result of the situation. Because NSR raised the issue of whether Moss suffered an injury, the burden was on Moss to come forward with evidence to create a genuine issue of material fact as to whether he suffered an injury. Moss did not. Although Dr. Galus listed an initial diagnosis of "toxic effect of unspecified gas, fume or vapor," he later reported that the medical evidence did not support a finding of carbon monoxide exposure. Moreover, Dr. Lina opined that Moss did not suffer from any type of toxic exposure. Moss' hospital records also report a normal examination. Notably, Moss did not provide any medical records from Dr. Maddox or the pulmonary specialist Dr. Maddox recommended for Moss. Also notable is James' testimony that he did not feel dizzy or nauseous but "just different."

As the record stands, the only evidence is Moss' testimony that he felt dizzy and his "heart started beating kind of fast" and that he felt like he was going to pass out. Moss' testimony alone, not corroborated by other evidence, does not create a genuine issue of material fact in the circumstances here as to whether Moss suffered an injury. No authority is cited for the proposition that an injury under FELA can be established solely by the testimony of the plaintiff. Accordingly, Moss has not made out a necessary element of his FELA claim sufficient to survive summary judgment.

C. BIA

It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with provisions of sections 28 to 30 and 32 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.

The liability imposed by the Boiler Inspection Act is absolute upon proof of an unsafe part and proximate cause. Urie v. Thompson, 337 U.S. 163, 188 (1949); Chesapeake Ohio Railway Co. v. Wells, 49 F.2d 251, 252 (6th Cir.), cert. denied, 284 U.S. 641 (1931); Simpkins v. Baltimore Ohio Railroad Co., 449 F. Supp. 613, 615 (S.D. Ohio 1976). However, as Moss points out, plaintiff must still prove that they suffered injuries "in whole or in part" because of the unsafe condition. This is so because an action for violation of the BIA is prosecuted as an action under FELA. See Urie, 337 U.S. at 189 n. 30; Feichko v. Denver Rio Grande Western R. Co., 213 F.3d 586, 588 (10th Cir. 2000) ("[t]he BIA does not create an independent cause of action for personal injuries, and such an action must therefore be brought pursuant to the FELA").

NSR argues that Moss has failed to raise a genuine issue of material fact as to whether the engine was defective. Moss, of course, disagrees. This argument misses the point. Because Moss has failed to show that he suffered an injury, he also cannot make out claim under the BIA.

SO ORDERED.