Wooten v. BNSF Ry. Co., CV 16-139-M-DLC

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtDana L. Christensen, Chief Judge
Citation387 F.Supp.3d 1078
Docket NumberCV 16-139-M-DLC
Decision Date23 April 2019
Parties Zachary WOOTEN, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

387 F.Supp.3d 1078

Zachary WOOTEN, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

CV 16-139-M-DLC

United States District Court, D. Montana, Missoula Division.

Signed April 23, 2019

387 F.Supp.3d 1090

Christopher W. Bowman, Pro Hac Vice, John D. Magnuson, William G. Jungbauer, Yaeger & Jungbauer Barristers, PLC, St. Paul, MN, for Plaintiff.

Benjamin O. Rechtfertig, Michelle T. Friend, Hedger Friend, Joseph Loren Breitenbach, Christensen Fulton & Filz, Billings, MT, David Keltner, Pro Hac Vice, Marianne M. Auld, Pro Hac Vice, Russell D. Cawyer, Pro Hac Vice, Kelly Hart & Hallman, LLP, Fort Worth, TX, Scott M. Stearns, John M. Newman, Boone Karlberg, P.C., Missoula, MT, for Defendant.


Dana L. Christensen, Chief Judge

Pending before the Court are the following post-trial motions: Plaintiff Zachary Wooten's Motion for Amended Judgment (Doc. 296), Motion for Attorney's Fees and Non-Taxable Costs (Doc. 301), and Defendant BNSF Railway Company's ("BNSF") Renewed Motion for Judgment as a Matter of Law, Motion for New Trial, to Alter or Amend Judgment, and Remittitur, and Request for Oral Argument (Doc. 307). For the following reasons, BNSF's various motions are denied in their entirety and Wooten's motions are granted in part and denied in part.


Wooten was unlawfully terminated by BNSF on September 29, 2015 in retaliation for his report of an on-the-job injury. Wooten brought this action against BNSF alleging violations of the Federal Employers' Liability Act ("FELA"), the Locomotive Inspection Act ("LIA"), and the Federal Rail Safety Act ("FRSA"). (Doc. 1 at 3–12.) On November 5, 2018, after an eleven-day

387 F.Supp.3d 1091

trial, the jury found that BNSF had not violated the LIA but that it had violated FELA and FRSA. (Doc. 289 at 1–5.) The jury found that Wooten was partially responsible for his injuries under FELA and assigned to him 25% contributory negligence. (Id at 2–3.) The jury awarded Wooten damages in the amount of $ 17,570 for lost wages and benefits up to the date of trial, which the Court reduced by 25% in order to reflect Wooten's contributory negligence for a total award of $ 13,177.50. (Docs. 289 at 3; 293 at 1.) On his FRSA claim, the jury awarded Wooten $ 1,407,978 in lost wages and benefits in the future, reduced to present value, and $ 500,000 for his mental and emotional humiliation or pain and anguish. (Doc. 289 at 3–4.) Additionally, after finding that BNSF's conduct was malicious or in reckless disregard for Wooten's rights, the jury awarded Wooten $ 249,999 in punitive damages. (Docs. 289 at 4; 291 at 1.)

Because the determination of BNSF's motions could render Wooten's requests moot, the Court begins its analysis with BNSF's various ascriptions of error. BNSF first renews its motion for judgment as a matter of law on Wooten's FRSA claim before advancing its alternative arguments for a new trial or remittitur of damages.

I. BNSF's Motions for Judgment as a Matter of Law, New Trial, or Remittitur

A. Judgment as a Matter of Law

Pursuant to Federal Rule of Civil Procedure 50(a)(1) judgment as a matter of law is appropriate if "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." BNSF made its original motion at the close of Wooten's case-in-chief and appropriately renewed that motion pursuant to Rule 50(b). Judgment as a matter of law is "proper if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Pavao v. Pagay , 307 F.3d 915, 918 (9th Cir. 2002). "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. v. Fed. Realty Inv. Tr. , 631 F.3d 1058, 1067 (9th Cir. 2011) (quoting Pavao , 307 F.3d at 918 ).

The Court's analysis of BNSF's arguments on Wooten's FRSA claim are aided by recent clarifications provided by the Ninth Circuit after the jury rendered its verdict in this case: Rookaird v. BNSF Railway Co. , 908 F.3d 451 (9th Cir. 2018), and Frost v. BNSF Railway Co. , 914 F.3d 1189 (9th Cir. 2019). A FRSA complaint proceeds in two stages, the prima facie stage and the substantive stage. Rookaird , 908 F.3d at 459 (citing 49 U.S.C. § 42121(b)(2)(B) ; 29 C.F.R. §§ 1982.104(e), 1982.109(a) – (b) ). Both stages are governed by a burden-shifting framework allowing the employer to defeat the employee's claim by showing "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)(ii), (iv) ; Rookaird , 908 F.3d at 459–60. As articulated in Rookaird , the prima facie showing has four elements:

[1] The employee engaged in a protected activity (or ... was perceived to have engaged or to be about to engage in protected activity);

[2] The respondent knew or suspected that the employee engaged in the protected activity (or perceived the employee to have engaged or to be about to engage in protected activity);
387 F.Supp.3d 1092
[3] The employee suffered an adverse action; and

[4] The circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.

Rookaird , 908 F.3d at 460 (quoting 29 C.F.R. § 1982.104(e)(2) ) (emphasis in original). If the plaintiff succeeds at the prima facie stage, he proceeds to the substantive stage where a violation will only be found if he can demonstrate by a preponderance of the evidence that any protected activity was a contributing factor to the unfavorable personnel action. Id. ; 49 U.S.C. § 42121(b)(2)(B) ; 29 C.F.R. § 1982.109(a).

BNSF argues that judgment as a matter of law is warranted in this case because Wooten failed to prove both "the knowledge" and "contributing factor" elements and, additionally, BNSF proved the "same action affirmative defense." As pointed out by Wooten, this is the fifth iteration of BNSF's arguments and, for the following reasons, the Court again finds those arguments unpersuasive.

i. The knowledge element

BNSF argues that there is no evidence that "the BNSF decision-makers knew Plaintiff submitted a personal injury report in good faith." (Doc. 308 at 7.) BNSF claims that the testimony elicited from the BNSF decision-makers at trial, Director of Labor Relations Kathleen Maglisceau and then-General Manager Dan Fransen, shows only that "[a]ll they knew was that Plaintiff had some injury before coming to work and this was amply supported by their assessment of what the crew shanty videos showed." (Id. at 8.)

BNSF's argument is unconvincing. Wooten only needed to show that BNSF, not Maglisceau or Fransen specifically, "knew or suspected" that Wooten had engaged in protected activity by reporting his injury. Rookaird , 908 F.3d at 460 (quoting 29 C.F.R. § 1982.104(e)(2) ). And, despite BNSF's generous characterization of Maglisceau's and Fransen's testimony, the Court cannot be convinced that the evidence supports BNSF's argument that either "knew Plaintiff had some injury before coming to work." Both Maglisceau and Fransen presented as overly biased and unreliable. The Court is convinced that there was substantial evidence showing the BNSF at least suspected that Wooten's report was made in good faith.

ii. The contributing factor element

Next, BNSF argues that Wooten failed to satisfy the contributing factor element of his claim because he offered neither "evidence demonstrating hostility towards employees who notified BNSF of a personal injury" nor "evidence the decision-makers lied about the reason for the dismissal." (Doc. 308 at 9–10.) BNSF asserts that Wooten improperly "relied" on the "ICP system-wide bonus to prove intentional retaliation" and "James Pino's PMP" to show intentional retaliation and that neither conclusively demonstrated retaliatory intent. (Id. at 9.) BNSF states that its "good faith belief [that] Wooten engaged in misconduct is dispositive on contributing factor." (Id. at 11.)

In its argument, BNSF focuses on Wooten's proof on the contributing factor element, and overlooks the flaws in its own evidence on this subject. The testimony of the BNSF employees who reviewed Wooten's case showed that they latched on to an early-formed presumption that Wooten was being dishonest that jaded their treatment of Wooten throughout. As previously stated, Maglisceau and Fransen presented as biased and unreliable. Although BNSF decries any reliance on Pino, his testimony claiming that he believed Wooten to have been previously injured and dishonest—which informed the perspective of the "decision-makers"—was

387 F.Supp.3d 1093

both inconsistent and lacking in credibility. In summary, the evidence presented at trial fell far short of proving that BNSF had an "honest" or "good faith" belief that Wooten was...

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