and Submitted May 11, 2018 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. No. 2:14-cv-00176-RSL Robert S.
Lasnik, Senior District Judge, Presiding
Jacqueline M. Holmes (argued), Jones Day, Washington, D.C.,
Christopher William Bowman (argued), William G. Jungbauer,
Yaeger & Jungbauer Barristers PLC, Saint Paul, Minnesota,
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.
Railroad Safety Act
panel affirmed in part, reversed in part, and vacated the
district court's judgment, after a jury trial, in favor
of the plaintiff on a claim that BNSF Railway Co. violated
the anti-retaliation provision of the Federal Railroad Safety
Act when it fired the plaintiff for, in part, refusing to
stop performing an air-brake test on a train that he was
tasked with moving.
panel affirmed the district court's denial of BNSF's
motion for judgment as a matter of law with respect to
whether the plaintiff engaged in FRSA protected activity. The
panel concluded that there was sufficient evidence to support
the jury's finding that the plaintiff refused, in good
faith, to violate a railroad safety rule or regulation. The
panel held that no actual violation of a rule or regulation
was required, and substantial evidence supported the
jury's finding that it was objectively reasonable for the
plaintiff to believe that the air-brake test was required.
panel reversed the district court's grant of summary
judgment to the plaintiff on the contributing-factor element
of his FRSA retaliation claim. The panel concluded that the
plaintiff made a prima facie showing, but his substantive
case should have gone to the jury because there remained a
genuine dispute of material fact as to whether the air-brake
test was a contributing factor in his termination.
panel vacated the district court's judgment and remanded
for further proceedings. It dismissed as moot the
plaintiff's cross-appeal related to damages.
from Part II.A of the majority opinion, Judge Ikuta wrote
that the applicable provision of FRSA protects an employee
who refuses to violate federal law; it does not protect an
employee who refuses to take an act the employee merely
thinks violates federal law.
TUNHEIM, CHIEF DISTRICT JUDGE
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.
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.
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.
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
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.
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
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."
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).
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).
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. §
District Court Proceedings
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.
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
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
airbrake 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." 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.