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Wooten v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

April 23, 2019

BNSF RAILWAY COMPANY, a Delaware corporation, Defendant. Departure Date Person Requested Fare Reason for Reduction Awarded Fare



         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 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 7 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); [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 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 being dishonest.

         "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." Frost, 914 F.3d at 1195 (internal quotation marks and citation omitted). The jury's finding that Wooten established the contributing factor element is supported by sufficient evidence and BNSF has failed to show that the evidence "construed in the light most favorable to [Wooten], permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Pavao, 307 F.3d at 918.

         iii. The same action affirmative defense

         BNSF's final argument for judgment as a matter of law is that it "proved by clear and convincing evidence it would have taken the same unfavorable personnel action absent Plaintiffs protected activity." (Doc. 308 at 11.) BNSF states that dishonesty is a "stand-alone dismissible offense," it followed its internal investigation and discipline procedures, and "disinterested individuals" reviewed and approved of Wooten's dismissal. (Id. at 12.) Further, BNSF asserts that it consistently disciplines employees for dishonesty "absent any injury report" and "does not discipline the vast majority of employees who report injuries." (Id.)

         BNSF unsuccessfully made these exact same arguments to the jury during trial. BNSF repeatedly claimed that it would have terminated Wooten for being dishonest but points to no dishonesty outside of the report itself. Weighing the evidence, the jury reasonably concluded that BNSF's accusations of dishonesty were hollow. Additionally, the jury weighed BNSF's claims that it routinely terminates dishonest employees against Wooten's evidence that BNSF had not fired numerous employees who had been found to be dishonest, one of whom had been dishonest in reporting an injury. Clear and convincing evidence is a heavy burden. The Court is satisfied that, when construed in the light most favorable to Wooten, the jury's determination that BNSF failed to carry its burden was a reasonable conclusion.

         B. New Trial

         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). A new trial may be granted "even though the verdict is supported by substantial evidence, if the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice." Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (internal quotation marks and citation omitted).

         BNSF advances numerous arguments in support of its request for a new trial which the Court addresses in turn.

         i. Failure to Bifurcate

         BNSF asserts that it suffered significant prejudice as a result of the Court's decision not to bifurcate the trial of Wooten's FRSA claim from the trial on his FELA and LIA claims and the further bifurcation of those claims from the trial on "issues of punitive damages." (Doc. 308 at 13-15.) BNSF complains that the jury was exposed to "FELA/LIA-related evidence" that had "zero relevance to the FRSA case" which "unduly influenced the jurors in their assessment" of the FRSA claim. (Id. at 14.) Further, BNSF claims that the Court failed in its obligation to provide limiting instructions to the jury that would have reduced the prejudice. (Id. at 14.)

         The decision on whether or not to bifurcate trial for any of the reasons provided in Federal Rule of Civil Procedure 42(b) is within the broad discretion of the trial court. In fact, "Rule 42(b) merely allows, but does not require, a trial court to bifurcate cases in furtherance of convenience or to avoid prejudice." Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (internal quotation marks omitted). Pre-trial, United States Magistrate Judge Jeremiah C. Lynch denied BNSF's motion to bifurcate. BNSF objected to Judge Lynch's order and this Court overruled that objection, agreeing with Judge Lynch that any possibility of prejudice can be reduced or eliminated by the use of limiting instructions to the jury. (Doc. 237 at 4.) Additionally, the Court found that the factors of Rule 42(b), considerations of convenience, expeditiousness, and judicial economy, all "weigh heavily in favor of trying this case at one fell swoop." (Id.)

         Looking back on the issue after an eleven-day trial, the Court is reaffirmed in its previous decision-significant overlap existed in the evidence relevant to the various claims advanced by Wooten which, in this Court's view, greatly increased the benefit of trying all claims together. Moreover, the Court is not convinced that the combined trial was particularly prejudicial to BNSF or that the jury was incensed by undefined "[p]unitive testimony." (Doc. 308 at 15.) The claims advanced by Wooten are not as complicated and easily confused as BNSF asserts. Additionally, the jury was given both limiting and curative instructions, just not the unnecessarily redundant limiting instructions BNSF requested. (See Doc. 284 at 7, 15, 23.) BNSF is not the victim of a miscarriage of justice as a result of Wooten's claims being tried together.

         ii. The Collective Bargaining Agreement

         BNSF next argues that it is entitled to a new trial because Wooten argued during trial that "the collectively bargained procedures were unfair, and that this unfairness represented a 'rush to judgment' demonstrating retaliatory intent," (Doc. 308 at 15.) BNSF claims that Wooten's arguments caused the jury to act as a "super-personnel department" that decided the case based upon its finding that the "CBA-governed discipline process" was unfair. (Doc. 320 at 6.) However, as pointed out by Wooten, BNSF has failed to identify any specific instance of when this argument was advanced. Throughout trial, the general argument advanced by Wooten was that BNSF treated him unfairly by discriminating against him for the filing of his injury report. This argument is distinct from an argument that the discipline process itself is flawed and unfair. BNSF puts much stock in its internal procedures and safeguards designed to prevent discrimination while failing to recognize that these checks are only as effective as the people enforcing them. Here, Wooten successfully argued that the people, not the process, treated him unfairly by retaliating against him after he filed his injury report. Again, BNSF has not suffered a miscarriage of justice.

         iii. Jury Instructions

         "[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)).

         BNSF claims various errors in the giving of jury instructions warrant a new trial in this case.

         a. Intentional Retaliation Instruction

         BNSF claims that the Court's instruction on the contributing factor element was erroneous because it stated, in part, that" Wooten is not required to conclusively demonstrate BNSF's retaliatory motive but he is required to show that retaliation played at least some role in BNSF's decision." (Doc. 308 at 17-18.) Citing Rookaird, BNSF argues that the Court's instruction included language "relevant only to a prima facie case" and is "reversible error." (Id. at 18.)

         In full, the instruction given to the jury states:

A "contributing factor" is any factor which, alone or in connection with other factors, affected the outcome of BNSF's personnel decision regarding Wooten in any way. Wooten is not required to conclusively demonstrate BNSF's retaliatory motive but he is required to show that retaliation played at least some role in BNSF's decision. The contributing factor standard may be satisfied by circumstantial evidence, which may include temporal proximity, indications of pretext, inconsistent application of the employer's policies, shifting explanations for the employer's actions, antagonism or hostility toward a complainant's protected activity, the falsity of an employer's explanation for the adverse action, or a change in the employer's attitude toward the complainant after he engaged in the protected activity. Neither temporal proximity nor evidence of BNSF's compensation program nor mere factual connection between protected activity and adverse employment action is sufficient, standing alone, to establish contributing factor.

(Doc. 284 at 27.) Additionally, the jury was instructed that Wooten had to prove "that his protected activity was a contributing factor to his termination" by a preponderance of the evidence. (Id. at 25.) The jury was further instructed on what the preponderance of the evidence burden of proof requires. (Id. at 2.) The Court is satisfied that these instructions fairly and adequately cover the issues presented, correctly state the law, and are not misleading. Gilbrook, 177 F.3d at 860.

         As the Ninth Circuit further clarified in Frost, "the only burden the statute places on FRSA plaintiffs is to ultimately prove, by a preponderance of the evidence, that their protected conduct was a contributing factor to the adverse employment action-i.e., that it tended to affect the decision in some way." 914 F.3d at 1195 (internal quotation marks, citations, and alteration omitted). 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). "[A]lthough the FRSA's prohibition on discriminating against an employee ultimately requires a showing of the employer's discriminatory or retaliatory intent, FRSA plaintiffs satisfy that burden by proving that their protected activity was a contributing factor to the adverse employment decision." Frost, 914 F.3d at 1196 (internal quotation marks and alteration omitted). The complained of instruction tracks this directive precisely.

         Notwithstanding BNSF's assertions to the contrary, what constitutes a contributing factor between the prima facie and substantive stages of a FRSA case does not change, only the burden of proof does. As emphasized by the Ninth Circuit, showing that "the circumstances are sufficient to raise the inference of x is a lower bar than proving x by a preponderance of the evidence." Rookaird, 908 F.3d at 460. However, this does not mean that x changes. "There is no requirement, at either the prima facie stage or the substantive stage, that a plaintiff make any additional showing of discriminatory intent." Frost, 914 F.3d at 1196.

         b. Honest Belief/Business Judgment Instruction

         BNSF next argues that the Court should have given an instruction stating that "BNSF cannot be held liable for Zachary Wooten's FRSA claim if you conclude that BNSF honestly believed Wooten engaged in the misconduct for which BNSF states he was disciplined." (Doc. 308 at 18.) This instruction is the exact instruction deemed inconsistent with the FRSA in Frost. 914 F.3d at 1196- 97. The Court is satisfied that the instruction proposed by BNSF would, itself, be a misstatement of the law liable to mislead the jury "to skirt the actual issue" of whether Wooten's injury report affected BNSF's decision in any way. Id. at 1197. The Court instructed the jury on what BNSF needed to show in order to prove its affirmative defense and BNSF attempted throughout trial to meet that burden by showing that it honestly believed Wooten was lying and would have terminated his employment in the absence of any injury report. (Doc. 284 at 25.) Even if the instruction were not a misstatement of the law, it is unnecessary following an instruction on BNSF's affirmative defense.

         c. Decision-Maker Knowledge Instruction

         BNSF asserts that the Court should have given an instruction focusing the jury "specifically on the decision-makers' knowledge of a good faith protected activity." (Doc. 308 at 19.) BNSF claims that the relevant inquiry in an FRSA case is "whether the decision-makers knew about (and thus could have considered) Plaintiffs good faith protected activity." (Id.) BNSF complains that the absence of such an instruction allowed the jury to focus on "the formal investigation, and [the] attack on Pino." (Doc. 320 at 9.) BNSF cites Conrad v. CSX Transportation, Inc., 824 F.3d 103, 108 (4th Cir. 2016), in support of its position that Wooten needed to prove that the decision-makers knew Wooten engaged in protected activity in good faith. (Doc. 308 at 19.)

         BNSF's misconstrues Conrad in an effort to support its position. The Court in Conrad held only that the decision-makers needed to know that the employee had engaged in a protected activity. 824 F.3d at 108. The requirement that an employer punishing an employee needs to know that the employee had engaged in protected activity is inescapable if the employer is going to be held liable for retaliating against that employee for the protected activity. However, BNSF attempts to impose an additional burden on the FRSA plaintiff by requiring that he show that the decision-maker knew the activity was done in good faith. This additional requirement is unsupported and untenable in the face of the purpose behind the FRSA. BNSF's proposed instruction would allow the termination of an employee for engaging in protected activity if some remote decision-maker is unsure of whether it was done in good faith. The FRSA only requires that Wooten show that BNSF "knew or suspected" the he engaged in protected activity. Rookaird, 908 F.3d at 460 (quoting 29 C.F.R. § 1982.104(e)(2)). The Court so instructed the jury.[1] (Doc. 284 at 25.)

         d. Affirmative Defense Instruction

         BNSF claims that it was entitled to an instruction putting its affirmative defense "in context." (Doc. 308 at 20.) BNSF provides no support for its position that the Court's decision not to give a contextual instruction is reversible error. The Court declines to address BNSF's legally inadequate argument. The jury was properly instructed on BNSF's affirmative defense. (Doc. 284 at 25.)

         e. Good Faith Efforts Instruction

         BNSF's last challenge regarding the instructions given to the jury is that the Court should have given an instruction consistent with Kolstad v. American Dental Ass 'n, 527 U.S. 526 (1999), that would allow BNSF to escape punitive damage liability if it "undertook good faith efforts by having policies in place to prevent retaliation." However, BNSF can point to no controlling authority to support its position that Kolstad, a Title VII case, is applicable to this FRSA case. Although the FRSA's whistleblower provision explicitly provides for punitive damages, it does not specify the standard for awarding those damages. 49 U.S.C. § 20109(e)(3). Accordingly, the Court instructed the jury according to the Manual of Model Civil Jury Instructions for the Ninth Circuit. BNSF has failed to show that the failure to give its requested instruction "warrants either a new trial or complete elimination of the punitive damages award." (Doc. 308 at 21.)

         iv. Evidentiary Errors

         BNSF next asserts that a No. of evidentiary errors warrant a new trial.[2]

         a. FRSA

         BNSF claims that the Court "erroneously admitted evidence of non-similarly-situated comparators." BNSF appears to assert that comparators must be from the same division, have the same job, and be terminated by the same supervisor in order to be relevant. (Doc. 308 at 21-22.) The cases cited by BNSF in support of this position do not establish the requirements BNSF seeks. See, e.g., Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) ("[Individuals are similarly situated when they have similar jobs and display similar conduct."). Accordingly, the Court declines to adopt the similarity requirements urged by BNSF. The Court is satisfied that the relevance of the comparators introduced at trial significantly outweighs the prejudicial impact they had on BNSF's case.

         b. FELA

         BNSF argues that several pre-trial rulings allowed Wooten to "game[ ] the system" by concealing evidence on his cell phone that BNSF claims would have proven that Wooten suffered his injuries after drinking to excess and falling down a steep hill. (Doc. 320 at 13.) To the extent that BNSF has implicated the Court's ruling on the limits of Rusty Weber's testimony, the Court relies on its articulated reasons for limiting that testimony under Federal Rules of Evidence 403 and 613(b). Namely: (1) BNSF had not established that there was an inconsistent statement to be impeached; (2) Weber was in the throes of alcoholism and admitted that his memory could have been impaired and that he was likely drunk at the time; (3) BNSF had not established that the alleged statement of Smith to Weber was based on firsthand knowledge; (4) BNSF sought the admission of this evidence not to impeach Smith but to support BNSF's version of Wooten's injury; (5) the evidence is highly prejudicial; and (6) the evidence has little probative value as it was not information BNSF knew at the time it made its decision but is instead only an attempt to backfill its version of Wooten's injury.

         Going back to the pre-trial rulings BNSF complains of, the Court denied BNSF's motion to compel the forensic examination of Wooten's cell phone and request for the second deposition of Greg Smith because they were filed three months after the close of discovery and the Court determined that BNSF had not shown good cause for deposing Smith a second time. (Doc. 236 at 6-8.) BNSF now claims that as a result of the disclosure of billing records, BNSF "now knows that Plaintiffs 'forensic expert' was conducting repeated testing while simultaneously moving for a protective order." (Doc. 308 at 23.) However, BNSF fails to connect the relevancy of its revelation with any legal reason to support a new trial in this case other than by making a bald assertion that BNSF has "significant concerns that a ...

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