Frost v. BNSF Ry. Co.

• Decision Date: 30 January 2019
• Docket Number: No. 17-35513,17-35513
• Parties: Michael A. FROST, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

914 F.3d 1189

Michael A. FROST, Plaintiff-Appellant,

v.BNSF RAILWAY COMPANY, Defendant-Appellee.

No. 17-35513

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2018 Seattle, Washington

Filed January 30, 2019

Lucas J. Kaster (argued) and James H. Kaster, Nichols Kaster LLP, Minneapolis, Minnesota, for Plaintiff-Appellant.

Bryan P. Neal (argued), Thompson & Knight LLP, Dallas, Texas; Keith M. Gorman, Hall & Evans LLC, Denver, Colorado; Paul S. Balanon, General Attorney, BNSF Railway Company, Fort Worth, Texas; for Defendant-Appellee.

Before: Ferdinand F. Fernandez, N. Randy Smith, and Morgan Christen, Circuit Judges.

CHRISTEN, Circuit Judge:

Michael Frost sued the BNSF Railway Company, alleging that it violated the Federal Railroad Safety Act (FRSA) when it disciplined and ultimately terminated him after he committed a pair of safety rule violations and filed an injury report. At trial, the district court instructed the jury that BNSF could not be liable if it terminated Frost due to an "honest belief" that he violated the company's safety rules. The jury returned a verdict for BNSF. We review the propriety of the "honest belief" jury instruction. Because it is inconsistent with the FRSA's clear statutory mandate and our prior caselaw, we reverse and remand for a new trial.

I.

BNSF is a large railway company that operates freight trains throughout the United States. Due to the many potential hazards associated with powerful locomotives operating near train and track workers, BNSF imposes a number of safety rules on its employees to minimize risks and prevent injuries. Among other things, those rules prohibit employees from approaching—or "fouling"—a track unless they have the proper authority and a work-related reason to be near the tracks.

BNSF hired Frost as a track laborer in June 2011. Within the first two years of his employment, Frost was disciplined twice for fouling the track. The first violation occurred on April 18, 2012. Frost was working with a crew that was repairing a section of track near Brimstone, Montana. The crew was removing and replacing a side track that ran adjacent to a main line. The crew members secured track authority—i.e., permission to be near the tracks because no trains would be running on the tracks—for both tracks at the start of their shift in order to move their equipment into position on the side track. The crew's foreman, George Schultz, released the crew's track authority for the main line once the equipment was in place on the side track, but he apparently failed to relay that information to Frost or the rest of the work crew.

During the course of the shift, Frost believed that the repair equipment was not being anchored properly so he moved toward the main line track to get a better view. At that point, a train traveling approximately 60 miles per hour passed by on the main line, narrowly missing Frost. The crew stopped working and Frost was taken to the hospital for examination. On April 20, 2012, BNSF issued a notice of investigation to Frost and Schultz regarding the near-miss incident. Frost returned to work a few days later and filed an injury report describing his injury as "PTSD following a traumatic incident."

BNSF held a disciplinary hearing in July 2012. Frost argued at the hearing that he was being singled out because several of his fellow laborers (who had not filed injury reports) acknowledged that they were also near the track but they were not disciplined. Frost also claimed that inspecting the equipment's anchoring pattern was a legitimate job-related reason for approaching the main line. The hearing officer, Robert Rindy, rejected both arguments. Rindy reviewed video from the train which showed no other laborers near the main line track. He also concluded that Frost could have checked the anchoring pattern from other locations without approaching the main line track. Because Rindy determined that Frost fouled the track and committed a Level S (Serious) safety violation, Frost received a 30-day record suspension and was placed on a 36-month review period for that incident.¹ On October 9, 2012, Frost responded by filing an FRSA retaliation complaint with OSHA.

Frost's second track violation occurred on November 8, 2012, when he was working on a crew in Wyoming as a grapple truck driver. Frost arrived at the work site and parked his truck by a railroad crossing with the back end of the truck overhanging the track. Frost then entered a trailer where several other BNSF employees were located, and apparently said something like "I guess I better get the authority since I'm already fouling the track." Because BNSF employees are required to know the precise details of their track authority before fouling a track, the other employees became concerned and a supervisor was called. The supervisor spoke with Frost and determined that he did not appear to have secured track authority before parking his truck. The supervisor removed Frost from service and reported the incident to Keith Samples, a division manager.

BNSF issued a notice of investigation and conducted a hearing regarding the second incident in January of 2013. Following the hearing, Samples found that Frost did not know the details of his track authority and that he had violated BNSF safety rules. Samples then concluded that Frost should be discharged due to the seriousness of the violation and the fact that it occurred so soon after the first disciplinary incident. It is undisputed that Frost would not have been discharged if the first incident had not occurred.

Frost requested reinstatement. After an internal review, BNSF decided to reinstate Frost, due to a concern that BNSF would not be able to justify the discipline imposed for the April 2012 incident if Frost challenged his dismissal before an arbitrator. Frost was reinstated, with back pay, and BNSF removed the April 2012 disciplinary incident from his record.

Nevertheless, Frost filed suit in September of 2015 alleging retaliation under the FRSA for Frost's engagement in protected activities—i.e., for reporting the PTSD injury following the first incident and for filing an OSHA complaint alleging disciplinary retaliation shortly thereafter. Frost's complaint alleged that these protected activities were contributing factors to BNSF's decision to terminate him, and he sought an award of emotional distress damages, punitive damages, and attorney's fees.

The matter was tried to a jury over four days. At trial, Rindy testified that he disciplined Frost because such discipline was required by BNSF's employee performance accountability policy, and not because Frost had filed an injury report or engaged in any other protected activities. And Samples testified that when he decided in 2013 that Frost should be discharged, he was not aware that Frost had filed an OSHA complaint concerning the first incident. At the close of the evidence, the trial court instructed the jury, over Frost's objection, that:

BNSF cannot be held liable under the Federal Railroad Safety Act if you conclude that defendant terminated plaintiff's employment based on its honestly held belief that plaintiff engaged in the conduct for which he was disciplined.

The jury returned a verdict in favor of BNSF.

Frost moved for a new trial, arguing that the honest belief jury instruction was erroneous and that it substantially prejudiced him. He also argued the he deserved a new trial because BNSF improperly withheld evidence regarding a potential retaliatory motive for terminating him—a "scorecard" policy that rated each manager, in part, on the number of injuries that occurred on his or her watch. The trial court acknowledged that BNSF appeared to "have hidden the ball" by not producing the scorecard policy in discovery, but it found no prejudice. The district court was also unpersuaded by Frost's challenge to the honest belief instruction. Frost appealed.²

II.

We review de novo whether a jury instruction properly states the elements that must be proved at trial. Chuman v. Wright , 76 F.3d 292, 294 (9th Cir. 1996). An instruction is erroneous when, viewing the instructions as a whole, the "substance of the applicable law was [not] fairly and correctly covered." Miller v. Republic Nat'l Life Ins. Co ., 789 F.2d 1336, 1339 (9th Cir. 1986) (alteration in original and citation omitted). If there is an error, we presume that the error was prejudicial and the non-moving party bears the burden of establishing that "it is more probable than not" that a properly instructed jury "would have reached the same verdict." Galdamez v. Potter , 415 F.3d 1015, 1025 (9th Cir. 2005) (quoting Obrey v. Johnson , 400 F.3d 691, 701 (9th Cir. 2005) ) (internal quotation marks omitted).

III.

We first examine the appropriate standards governing a claim of unlawful discrimination under the FRSA. As we recently explained in Rookaird v. BNSF Railway Co. , 908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the AIR-21³ framework set forth in 49 U.S.C. § 42121(b) for claims of unlawful discrimination. Id . at 459.⁴

To establish a claim of unlawful discrimination under the FRSA, the plaintiff must prove by a preponderance of the evidence that his or her protected conduct "was a contributing factor in the unfavorable personnel action alleged in the complaint." Id . at 460 (citing 49 U.S.C. § 42121(b)(2)(B)(iii) ). A contributing factor is "any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision." Rookaird , 908 F.3d at 461 (internal quotation marks omitted). If the plaintiff succeeds, the employer can attempt to rebut the allegations and defeat the claim by demonstrating "by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." 49 U.S.C. § 42121(b)(2)(B)(iv).

Importantly, the only burden the statute places on FRSA plaintiffs is to ultimately prove, by a...