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Frost v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

May 23, 2017

MICHAEL A. FROST, Plaintiff,


          Donald W. Molloy, District Judge.

         Plaintiff Michael A. Frost seeks a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Doc. 138.) Defendant BNSF opposes the motion. (Doc. 141.) Frost argues a new trial is warranted because the jury received an erroneous instruction that substantially prejudiced him, and because newly discovered evidence would likely have changed the outcome of trial. Because neither argument succeeds, the motion is denied.


         On April 18, 2012, Frost worked with a steel gang near Brimstone, Montana. Frost alleges he was nearly struck by an oncoming train when track supervisors released it on a neighboring track without informing the steel gang. (Doc. 1 at 4-5.) Frost was subsequently served with a Notice of Investigation dated April 20, 2012, informing him that an investigation had been scheduled to "ascertain[] the facts and determine [his] responsibility, if any, in connection with [his] alleged fouling the track" on that day. Frost completed a BNSF employee personal injury/occupational illness report dated April 23, 2012, stating he had suffered "PTSD following [a] traumatic incident." BNSF held an investigatory hearing July 11, 2012, and subsequently found Frost in violation of two BNSF Maintenance of Way Rules. Frost was assessed a 30-day record suspension and 36-month review period. On October 9, 2012, Frost filed a complaint with the Occupational Safety and Health Administration. Frost was then served with another Notice of Investigation dated November 12, 2012, regarding an incident where he allegedly fouled the track near Parkman, Wyoming, without track authority by parking a grapple truck across it. After a January 30, 2013 investigatory hearing, BNSF terminated Frost on February 22, 2013. BNSF reinstated Frost with back pay on May 17, 2013, and removed the discipline related to the April 18, 2012 incident from his record.

         On September 24, 2015, Frost filed suit against BNSF alleging it violated the employee protection provisions of the Federal Railroad Safety Act, 49 U.S.C. § 20109, by retaliating against him. (Doc. 1.) He claimed he engaged in protected activity by requesting to be taken to a medical facility following the near-miss, filing an injury report, requesting counseling, making reports regarding BNSF's safety violation, and filing a claim with OSHA. (Doc. 1 at ¶ 39.) Following a three-day trial, a jury found Frost did not prove by a preponderance of the evidence the elements necessary for his retaliation claim against BNSF. (Doc. 124.)

         legal Standard

         Following a jury trial, a court "may, on motion, grant a new trial on all or some of the issues ... for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a). Rule 59(a) does not provide a list of proper reasons for new trial, relying instead on historical practice. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). "Ultimately, the district court can grant a new trial under Rule 59 on any ground necessary to prevent a miscarriage of justice." Experience Hendrix L.L.C. v. Ltd, 762 F.3d 829, 842 (9th Cir. 2014).


         I. Jury Instruction

         "[E]rroneous jury instructions . . . are bases for a new trial." Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990). "'Jury instructions must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading.'" Gilbrook v. City of Westminster, 111 F.3d 839, 860 (9th Cir. 1999) (quoting Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). "Whether an instruction misstates the law ... is a legal issue reviewed de novo." Galdamez v. Potter, 415 F.3d 1015, 1021 (9th Cir. 2005). If a jury is erroneously instructed, prejudice is presumed "and the burden shifts to the [opposing party] to demonstrate 'that it is more probable than not that the jury would have reached the same verdict' had it been properly instructed" Id. at 1025 (quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)).

         A. Erroneous Instruction

         Frost argues that Instruction No. 20 was an incorrect statement of law and therefore warrants a new trial. (Doc. 139 at 6.) In its entirety, Instruction No. 20 states "BNSF cannot be held liable under the Federal Rail Safety Act if you conclude that defendant terminated plaintiffs employment based on its honestly held belief that plaintiff engaged in the conduct for which he was disciplined." (Doc. 121 at 26.) Frost argues this "honest belief instruction is incompatible with the Federal Rail Safety Act. (Doc. 139 at 7.) BNSF disagrees, asserting that the instruction was appropriate because it correctly applies to the "contributing factor" element Frost was required to meet in order to prove his claim. (Doc. 141 at 3.)

         In pertinent part, the Federal Rail Safety Act makes it unlawful for a railroad to "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 engagement in certain protected activities. 49 U.S.C. § 20109(a). Burdens of proof under the Act are governed by 49 U.S.C. § 42121(b), part of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, which lays out a two-step burden-shifting test. Id. at § 20109(d); see also Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013). Under § 42121 (b)(2)(B)(i)-(ii), an employee must first make a prima facie showing that (1) he engaged in protected activity in good faith; (2) the employer knew or perceived he engaged in that activity; (3) the employer subjected the plaintiff to an adverse employment action; and (4) the plaintiffs protected activity was a contributing factor to the adverse action. (See also Doc. 121 at 18, Instruction No. 12); Araujo, 708 F.3d at 157; Tides v. Boeing Co., 644 F.3d 809, 813-14 (9th Cir. 2011) (discussing § 42121(b)(2)(B)(i) in the context of the Sarbanes-Oxley Act, which also incorporates § 42121(b)). A "contributing factor" is "any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision." Araujo, 708 F.3d at 158; (Doc. 121 at 21, Instruction No. 15). If the employee presents a prima facie case, the burden shifts to the employer to demonstrate "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).

         Frost argues that the "honest belief instruction cannot apply to a Federal Rail Safety Act claim because the "honest belief doctrine derives from McDonnell-Douglas Corp. v. Green, which laid out three-part burden shifting test under which (1) the plaintiff must show a prima facie case, (2) the defendant can rebut that case by articulating "some legitimate, nondiscriminatory reason for the employee's rejection, " which (3) the plaintiff must then show to be pretextual in order to prevail. 411 U.S. 792, 802-04 (1973). Honest belief, per Frost, cannot apply in a Federal Rail Safety Act case because there is no "pretext element" in the two-part burden-shifting test of § 42121(b)(2)(B). (Doc. 139 at 13.) Its application here, Frost continues, impermissibly shifted the final burden of proof from BNSF (to show by clear and convincing evidence it would have taken the same action had Frost not engaged in protected activity) to Frost (to show BNSF's proffered reasons were merely pretextual). (Id. at 14.) In other words, BNSF's termination of Frost could ...

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