Rookaird v. BNSF Ry. Co.

• Decision Date: 08 November 2018
• Docket Number: 16-35931,16-36062,No. 16-35787,Nos. 16-35786,s. 16-35786,16-35787
• Parties: Curtis ROOKAIRD, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant-Appellant. Curtis Rookaird, Plaintiff-Appellant, v. BNSF Railway Company, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

908 F.3d 451

Curtis ROOKAIRD, Plaintiff-Appellee,

v.BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant-Appellant.

Curtis Rookaird, Plaintiff-Appellant,

v.BNSF Railway Company, a Delaware Corporation, Defendant-Appellee.

Nos. 16-35786

16-35931

16-36062

No. 16-35787

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2018 Seattle, Washington

Filed November 8, 2018

Jacqueline M. Holmes (argued), Jones Day, Washington, D.C., for Defendant-Appellant/Cross-Appellee.

Christopher William Bowman (argued), William G. Jungbauer, Yaeger & Jungbauer Barristers PLC, Saint Paul, Minnesota, for Plaintiff-Appellee/Cross-Appellant.

Nichols D. Thompson, Nichols Kaster PLLP, Minneapolis, Minnesota; Lawrence M. Mann, Bethesda, Maryland; for Amicus Curiae Academy of Rail Labor Attorneys.

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and John R. Tunheim,^* Chief District Judge.

Partial Dissent by Judge Ikuta

TUNHEIM, Chief District Judge:

These appeals follow a civil jury trial. The jury found that BNSF Railway Company violated the anti-retaliation provision of the Federal Railroad Safety Act ("FRSA") when BNSF fired Curtis Rookaird for, in part, refusing to stop performing an air-brake test on a 42-car train that he was tasked with moving. Rookaird was awarded over $1.2 million in damages. BNSF appeals issues related to its liability and damages; Rookaird cross-appeals issues related to damages. For the reasons below, we affirm in part, reverse in part, vacate the district court’s judgment, and remand.

I. Background

A. Factual Background

BNSF operates a freight railroad in the western United States and Canada. It serves customers across North America, including northwest Washington known as Cherry Point. The Cherry Point rail line connects to a main line that runs from Bellingham to BNSF’s Swift Depot. BNSF employs three-person "switcher" crews that serve BNSF customers in Cherry Point by switching or reassigning freight cars as part of delivering or picking up freight. In early 2010, BNSF relocated its switcher crews from Bellingham to the Swift Depot to reduce travel time to Cherry Point, thereby reducing the overtime BNSF had to pay those crews.

Curtis Rookaird was a conductor for – and thus in charge of – one such crew. On February 23, 2010, Rookaird and his crew worked a scheduled eight-hour shift beginning at 2:30 p.m. The "Trainmaster," Dan Fortt, tasked Rookaird’s crew with moving a 42-car train in Custer from the main line to a different set of tracks before traveling to Cherry Point to service BNSF’s customers.

Three hours into their shift, the crew arrived in Custer after securing two engines in Ferndale (south of Custer). Before moving the 42-car train, Rookaird’s crew performed a 20- to 45-minute air-brake test on the train. During the test, Fortt said on the radio to Rookaird and his crew, "I’m not from around here, and I don’t know how you guys do anything. But from where I’m from, we don’t have to air test the cars." Fortt did not tell the crew to stop. Rookaird’s crew replied that they were going to finish the test. They did, and then began moving the 42-car train.

About ninety minutes later, around five hours into their shift, Rookaird’s crew had not yet completed moving the 42-car train in Custer and had not yet serviced any Cherry Point customers. Fortt and Stuart Gordon, another one of Rookaird’s supervisors on duty that day, were frustrated with what they believed to be a slow pace of work by Rookaird’s crew. Fortt ordered Rookaird’s crew to stop work and report back to the Swift Depot because another crew was going to relieve them. Gordon believed that Rookaird was intentionally slowing down work as a way to get back at BNSF for reducing overtime hours.

Back at the Swift Depot, around 7:50 p.m., Gordon questioned Rookaird about the air-brake test. Gordon told Rookaird that he thought the test was unnecessary. Gordon also asked Rookaird if he would be happy with the level of service he received that day if he were a BNSF customer; Rookaird told him no. Gordon then told Rookaird and his crew that they were done for the day and to clock out and go home. Rookaird printed his timesheet at 8:02 p.m., reporting his off-duty time at 8:30 p.m. Around 8:15 p.m., Gordon again told Rookaird to go home; he did, but he did not sign his timesheet before leaving.

BNSF initiated an investigation into Rookaird to determine whether any disciplinary action was warranted. On March 19, BNSF fired Rookaird for his "failure to work efficiently ... on February 23," his "dishonesty when reporting [his] off duty time," his failure to sign his timesheet, and his "failure to comply with instructions when instructed to leave the property ... on February 23."

B. The FRSA

The FRSA prohibits railroad operators from retaliating against employees who refuse in good faith to violate railroad safety laws or regulations. The FRSA provides:

A railroad carrier ... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith ... refus[al] to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety ....

49 U.S.C. § 20109(a), (a)(2).

An employee who alleges an FRSA anti-retaliation violation may file a complaint with the Secretary of Labor. Id. § 20109(d)(1). If the Secretary fails to issue a final decision within 210 days, the employee may bring a civil action in federal court. Id. § 20109(d)(3).

An FRSA retaliation complaint proceeds in two stages, each of which is governed by a burden-shifting framework. First, the complainant must "make[ ] a prima facie showing that" protected activity "was a contributing factor in the unfavorable personnel action." 49 U.S.C. § 42121(b)(2)(B)(i). If the complainant makes a prima facie showing, the burden shifts to the employer to prove "by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of" the protected activity. Id. § 42121(b)(2)(B)(ii). Then, to substantively establish an FRSA violation, the complainant must prove by a preponderance of the evidence "that any [protected activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." 49 U.S.C. § 42121(b)(2)(B)(iii) ; see 29 C.F.R. § 1982.109(a). If the complainant proves the substantive case, then the burden again shifts to the employer to prove "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).

C. District Court Proceedings

Rookaird brought this action pursuant to 49 U.S.C. § 20109(d)(3). Rookaird alleged that BNSF violated the anti-retaliation provision of the FRSA because BNSF fired him for, in part, refusing to stop performing the air-brake test. BNSF insisted that it did not fire him for that reason. BNSF also asserted its affirmative defense under 49 U.S.C. § 42121(b)(2)(B)(iv) that it would have fired Rookaird even if he had not performed the air-brake test.

The district court held that Rookaird was required to prove four elements by a preponderance of the evidence: "that (1) he engaged in a protected activity; (2) the employer knew he engaged in the allegedly protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable personnel action." The district court granted Rookaird summary judgment on all but the first element of his substantive case. The district court held that BNSF knew that Rookaird performed the air-brake test, that his termination was an adverse action, and that the air-brake test was a contributing factor in his firing. With respect to the contributing-factor element, the district court found that the "cited failure to work efficiently cannot be unwound from Rookaird’s decision" to perform the air-brake test.

The issues for the jury were whether Rookaird’s refusal to stop the air-brake test was FRSA-protected activity, BNSF’s affirmative defense, and damages. Before closing arguments, the district court concluded that – although Rookaird’s crew was not legally required to perform the air-brake test under the circumstances, describing the issue as a "close call" – a reasonable jury could find that Rookaird engaged in protected activity because there was evidence that Rookaird "had a subjectively and objectively reasonable good faith belief that the air-brake test was required."¹ The jury returned a verdict for Rookaird, finding that Rookaird’s refusal was FRSA-protected activity. The Court awarded Rookaird $1.2 million in damages and entered final judgment.

These appeals followed.

II. Discussion

A. Protected Activity

BNSF appeals the district court’s denial of BNSF’s motion for judgment as a matter of law that Rookaird did not engage in protected activity. We review de novo a district court’s denial of a motion for judgment as a matter of law. First Nat’l Mortg. Co. v. Fed. Realty Inv. Tr. , 631 F.3d 1058, 1067 (9th Cir. 2011). Judgment as a matter of law is proper only when "the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict." Josephs v. Pac. Bell , 443 F.3d 1050, 1062 (9th Cir. 2006). "The verdict will be upheld if it is supported by substantial evidence, ‘even if it is also possible to draw a contrary conclusion.’ " First Nat’l Mortg. Co ., 631 F.3d at 1067 (quoting Pavao v. Pagay , 307 F.3d 915, 918 (9th Cir. 2002) ).

BNSF argues that Rookaird did not engage in protected activity as a matter of law for two reasons. First, BNSF insists there was insufficient evidence from which the jury could have found that Rookaird "refused" to violate a railroad safety rule or regulation because he was never explicitly ordered to stop the air-brake test. Second, BNSF argues that 49 U.S.C. § 20109(a)...