Frost v. BNSF Railway Company
ORDER denying 138 Motion for New Trial. IT IS FURTHER ORDERED that the stay on enforcement of judgment, Doc. 147 , is LIFTED. Signed by Judge Donald W. Molloy on 5/23/2017. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
NAY 23 2017
MICHAEL A. FROST,
BNSF RAILWAY COMPANY,
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
Unless otherwise noted, facts are taken from the jury instructions given at trial (Doc.
121, Instruction No. 10).
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 ir 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.
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. MJ. 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.
Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014).
"[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, 177 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)).
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 plaintiff's employment based on its honestly
held belief that plaintiff engaged in the conduct for which he was disciplined."
(Doc. 121at26.) 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 simultaneously stem from both its honestly held belief
that he engaged in the conduct for which he was disciplined (his violation of the
Maintenance of Way Rules) and its knowledge of his protected activity (thereby
satisfying the "contributing factor" standard).
It is not clear that under such a reading that the "honest belief' instruction
would mislead the jury by negating the "contributing factor" standard. Instruction
20 informed the jury it could not hold BNSF liable if it concluded BNSF
terminated Frost's employment "based on its honestly held belief that Frost
engaged in the conduct for which he was disciplined." (Doc. 121 at 26.) If the
jury agreed, that is, if the jury found BNSF terminated Frost "based on its honestly
held belief' that Frost broke the rules, its conclusion would reflect the inference
that Frost's protected activity was not in fact a contributing factor to his dismissal.
Even assuming the "honest belief' instruction could be read as Frost argues,
any latent ambiguity is resolved by reading that instruction in light of the
instructions as a whole. First, the jury was instructed to "follow all" of the
instructions, "and not single out some and ignore others," indicating it would have
considered both honest belief and contributing factor. (Doc. 121 at 1, Instruction
No. 1.) Second, the jury was instructed that a contributing factor "is anything
which, alone or in connection with other matters, affected in any way any adverse
employment decision by the BNSF concerning Frost," indicating the coexistence
of an honest belief and a contributing factor would, at least at the prima facie
stage, still result in a liability finding. (Id. at 21, Instruction No. 15.) Finally, the
jury was instructed that BNSF could avoid liability of it "prove[d] by clear and
convincing evidence that it would have taken the same adverse employment
actions in the absence of [Frost's] protected activity," supplying the correct burden
of proof by which BNSF would have needed to show its honest belief had Frost
proved his prima facie case. (Id. at 18, Instruction No. 12.) Taken as a whole,
these instructions covered the issue as a whole and correctly stated the law.
Gilbrook, 177 F.3d at 860 (quoting Chuman, 76 F.3d at 294). The "honest belief'
instruction was not in error.
Even if the "honest belief' instruction was in error, it did not substantially
prejudice Frost because the jury found he did not meet the requirements of his
initial prima facie case. A jury instruction is prejudicially erroneous and grounds
for a new trial if "looking to the instructions as .a whole, the substance of the
applicable law was not fairly and correctly covered." Miller v. Republic Nat. Life
Ins. Co., 789 F.2d 1336, 1339 (9th Cir. 1989). "[B]oth inconsistent or equivocal
instructions and incorrect statements of the law may be prejudicially erroneous."
Pollockv. Koehring Co., 540 F.2d 425 (9th Cir. 1976).
The instructions here were neither inconsistent nor equivocal, and fairly and
correctly covered the applicable law under the Federal Rail Safety Act. The first
question on the verdict form asked whether Frost "prove[ d] by a preponderance of
the evidence the elements necessary for his retaliation claim as set forth in the
instructions." (Doc. 124 at 1.) The jury found Frost had not. (Id.) Because Frost
did not meet his prima facie burden of showing his "protected activity was a
contributing factor to one or more of the adverse employment actions," (Doc. 121
at 18, Instruction No. 21), BNSF's honest belief was not implicated. See also
Galdamez, 415 F .3 d at 1021 (finding in the context of a Title VII action that "any
error stemming from ... [a] truncated version of [a] mixed motive instruction was
more likely than not harmless" where the jury found the plaintiff had not shown
"that her national origin was 'a motivating factor in any adverse employment
action on the part of her supervisors"' while noting specifically the plaintiff had
nevertheless been subjected to an adverse employment action). Thus, even
assuming arguendo that the "honest belief' instruction was in error, Frost was not
prejudiced by it.
Newly Discovered Evidence
Frost further alleges BNSF withheld evidence of a "scorecard" policy,
wherein BNSF's managers are individually rated based, in part, on injuries that
occur under their direction. (Doc. 139 at 20.) Counsel for Frost states that, after
the conclusion of trial, a former BNSF employee informed counsel's firm of the
scorecard summaries, and explained that "the scorecard is a metric used to
evaluate manager performance ... used, in part, to determine promotional
opportunities, wage raises, and bonuses for BNSF managers." (Doc. 140 at 2-3.)
Frost asserts that availability of this potential evidence at trial would probably
have resulted in a different outcome "because the ratings provide [BNSF's]
managers clear motive to retaliate against [Frost] for his injury report." (Doc. 139
at 21.) Frost argues that the scorecard summaries would also have made BNSF's
Incentive Compensation Plan relevant at trial, because it would show that BNSF
has at least two policies tying employee injury frequency to manager
compensation. (Id. at 23, n.9.)
A party seeking a new trial on the basis of newly discovered evidence must
show that "( 1) the evidence was discovered after trial, (2) the exercise of due
diligence would not have resulted in the evidence being discovered at an earlier
stage and (3) the newly discovered evidence is of such magnitude that production
of it earlier would likely have changed the outcome of the case." Defenders of
Wildlife v. Bernal, 204 F.3d 920, 929 (9th Cir. 2000). "Newly discovered
evidence is evidence which pertains to facts in existence at the time of trial but
which, by the exercise of reasonable diligence, was not discoverable prior to trial."
Eigeman v. City a/Great Falls, 723 F. Supp. 522, 524 (D. Mont. 1989) (citing
Contempo Metal Furniture Co. of Cal. v. E. Texas Motor Freight Lines, Inc., 661
F.2d 761 (9th Cir. 1981)).
BNSF contests Frost's assertion that the scorecard summaries constitute
newly discovered evidence, pointing out that Frost's counsel admits Frost was
aware of the existence of the scorecards before trial began. (Doc. 141 at 23.)
BNSF also notes that BNSF employee Eric Weber informed Frost's counsel
during his deposition that BNSF measures injury frequency at the midlevel
manager level (such as division engineer, superintendent, mechanical foreman,
and general foreman). (Doc. 141-2 at 55.) Because Frost was made aware that
BNSF tracked injury frequency by midlevel manager, BNSF argues, he cannot
now claim the "scorecard" summaries are newly discovered. (Doc. 141 at 23.)
Frost insists that the summaries are newly discovered because Frost believed the
scorecard summaries only referred to "budgetary targets" and was unaware of the
injury metric, and because Frost exercised due diligence by requesting in
discovery that BNSF produce all policies related to employee compensation.
(Doc. 139 at 21.)
On one hand, if Frost's BNSF source's assertion that the scorecard
summaries are used in part to determine salary and promotions are true, Frost
makes a good case that BNSF wrongfully withheld the summary despite Frost's
request for BNSF policies related to employee compensation. If, on the other
hand, those assertions are inaccurate, the scorecard summaries would not appear to
be relevant to Frost's request. And while BNSF asserts the summaries are not
used to determine bonuses, it does not contradict Frost's assertion that they are
used in part to determine compensation and promotion. Also unclear is whether
Eric Weber's statements in his deposition that BNSF tracks injury frequency by
midlevel manager should have put Frost on notice such that reasonable diligence
would have led to his discovery of the scorecard summaries. BNSF may very well
have hidden the ball.
That said, the scorecard summaries are not "of such magnitude" that their
earlier production "would likely have changed the outcome of the case."
Defenders of Widlife, 204 F.3d at 929. Frost's theory is that BNSF managers were
motivated by BNSF' s compensation structure, which rewarded managers whose
employees reported fewer injuries, to retaliate against Frost for reporting an injury,
and that the scorecard summaries are evidence of that motivation because they tie
compensation to injury reporting. (Doc. 139 at 23.) However, as Mark Premrock,
General Director of Compensation for BNSF states in his affidavit supporting
BNSF's reply brief, the scorecard summaries are not linked to manager bonuses.
6.) Nor would the introduction of the scorecard summaries have
made the Incentive Compensation Plan admissible, because the Plan is based on
system-wide injury numbers and does not tie a manager's bonus to those injuries
reported under his or her watch. (Doc. 141at21; Doc. 112 at 1-2.) While Frost's
BNSF source states that the scorecard summaries are used to evaluate manager
performance, which is in tum tied to promotions and raises, (Doc. 141 at 2), that
connection is not so substantial as to warrant a new trial.
Request to Strike
In its response brief, BNSF asks that the declaration of Frost's counsel
Lucas Kaster in support of Frost's motion for new trial be stricken. (Doc. 141 at
19.) BNSF has not moved to strike, and the declaration is not "redundant,
immaterial, impertinent, or scandalous." Fed. R. Civ. P. 12(f). The declaration
will not be stricken.
Because the "honest belief' instruction does not negate the "contributing
factor" standard under the Federal Rail Safety Act, it is not an erroneous statement
of the law. In addition, the jury instructions as a whole fairly and accurately cover
the issues presented and are not misleading. And even if the "honest belief'
instruction were erroneous, the jury's verdict shows it did not substantially
prejudice Frost. Finally, even if the "scorecard summaries" are newly discovered
evidence, their earlier production would not likely have changed the outcome of
Accordingly, IT IS ORDERED that the Motion for New Trial (Doc. 138) is
DENIED. IT IS FURTHER ORDERED that the stay on enforcement of judgment
(Doc. 147) is LIFTED.
%,.~day of May, 2017.
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