Koziara, Michael v. BNSF Railway Company

Filing 227

OPINION & ORDER denying 212 Motion for Judgment as a Matter of Law; denying 213 Motion for Equitable Relief. Signed by District Judge James D. Peterson on 2/16/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL KOZIARA,

v.

Plaintiff,

BNSF RAILWAY COMPANY,

OPINION & ORDER
13-cv-834-jdp

Defendant.

At trial, plaintiff Michael Koziara succeeded on his claim that defendant BNSF
Railway Company retaliated against him for reporting a workplace injury, in violation of the
Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109. A jury awarded Koziara $425,724.64,
which included lost wages, damages for pain and suffering, and punitive damages. The court
entered judgment on March 11, 2015.
Two post-trial motions are before the court. First, BNSF moves for judgment as a
matter of law, pursuant to Federal Rule of Civil Procedure 50, or, in the alternative, for a new
trial, pursuant to Rule 59. Dkt. 212. Second, Koziara moves for equitable relief, asking the
court to order BNSF to pay certain taxes to the Railroad Retirement Board (RRB) and to
support Koziara’s claim for service credit. Dkt. 213.
This case was well-tried by both sides, and BNSF put on a strong defense. The court’s
task here is not to second-guess the jury, but to determine whether the verdict was supported
by the evidence. The court must view the evidence in a light favorable to the verdict, and
from this perspective, there is no basis to overturn any aspect of it. The court will therefore
deny BNSF’s motions for judgment as a matter of law and for a new trial. The court will also

deny Koziara’s request for equitable relief because the issues that he raises are appropriately
addressed to the RRB, not to this court.

BACKGROUND
The court recounted the material facts of the case in its summary judgment opinion.
Dkt. 73. To briefly summarize:
Koziara began working for BNSF more than 30 years ago, in the company’s
Maintenance of Way Department. On September 9, 2010, Koziara was supervising a work
crew assigned to remove and reinstall crossing planks in East Winona, Wisconsin. Koziara
was injured when a crossing plank struck him in the left shin. Although Koziara did not think
that he was seriously injured at the time, he later learned that he had fractured his tibia.
Koziara called two of his co-workers to explain that he would have to miss work because of
an injury. But he initially told them that the injury had occurred over the weekend, at home.
Later, Koziara called these co-workers again and confessed that the injury had actually
occurred at work.
Koziara also called his supervisor, Roadmaster Michael Veitz, to report the accident
and injury. Koziara completed an injury report, which BNSF accepted, and Veitz investigated
the accident. Veitz concluded that Koziara had moved into the work zone while a front-end
loader was prying up a crossing plank, contrary to BNSF’s safety rules. But Veitz’s
investigation also revealed another possible source of Koziara’s injury: an event that occurred
about a week before the accident. Employees reported seeing Koziara jumping off of a trailer
and hopping around afterward as if injured. Worse, employees reported that when this
possible injury occurred, Koziara had been taking used railroad ties to give to a friend.

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BNSF began two separate disciplinary proceedings against Koziara. The first was to
address whether he had violated BNSF’s safety policies during the September 9 incident. The
second was to address whether Koziara had stolen company property by taking ties without
permission. BNSF eventually suspended Koziara for violating workplace safety rules and later
terminated him for stealing company property.
Koziara filed suit in this court on December 4, 2013, alleging that both of BNSF’s
disciplinary actions against him were in retaliation for reporting a workplace injury. At
summary judgment, the court concluded that there was no dispute that Koziara had satisfied
three of the four elements of his claim under FRSA. But there were genuine disputes of fact
as to one element—whether Koziara reported his injury in good faith—and as to BNSF’s
affirmative defense to liability—whether the company would have taken the same adverse
actions against Koziara despite his injury report. The case proceeded to a trial on these two
issues, bifurcated into a liability phase and a damages phase. A jury ultimately found in
Koziara’s favor and awarded him $175,725.64 in lost wages, $125,000 for emotional pain
and suffering, and $125,000 in punitive damages. Dkt. 181 and Dkt. 183.

ANALYSIS
Two post-trial motions are before the court. First, BNSF has raised a series of
challenges to the jury’s verdict, essentially contending that it is entitled to judgment as a
matter of law on every aspect of this case, or, in the alternative, to a new trial. Second,
Koziara has moved for equitable relief in the form of an order requiring BNSF to help him
obtain service credit from the RRB.

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A. BNSF’s motion for judgment as a matter of law or for a new trial
At trial, BNSF moved for judgment as a matter of law on three issues: (1) whether a
jury could find by a preponderance of the evidence that Koziara had proven every element of
his claim under FRSA; (2) whether a jury would have to find by clear and convincing
evidence that BNSF had proven its statutory affirmative defense; and (3) whether Koziara
could recover lost wages, damages for emotional distress, and punitive damages. BNSF has
now renewed each of these challenges in one post-trial motion under Rule 50(b). Dkt. 212.
BNSF has also moved for a new trial under Rule 59(a)-(d), and to amend the judgment under
Rule 59(e). Id.
“In deciding a Rule 50 motion, the court construes the evidence strictly in favor of the
party who prevailed before the jury and examines the evidence only to determine whether the
jury’s verdict could reasonably be based on that evidence.” Passananti v. Cook County, 689
F.3d 655, 659 (7th Cir. 2012). The court reviews the entire record but does not reweigh the
evidence, make credibility determinations, or consider evidence favorable to the moving party
that the jury was not required to believe. Id. Thus, BNSF is entitled to judgment as a matter
of law only if the jury did not have a “legally sufficient evidentiary basis” to find in Koziara’s
favor. Id.; Fed. R. Civ. P. 50(a)(1).
A new trial is appropriate under Rule 59 “if the verdict is against the weight of the
evidence, the damages are excessive, or if for other reasons the trial was not fair to the
moving party.” Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). Likewise, a
motion to amend the judgment under Rule 59(e) “will be successful only where the movant
clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that
newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722

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F.3d 939, 954 (7th Cir. 2013) (internal citations and quotation marks omitted). “A ‘manifest
error’ is not demonstrated by the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal citations and quotation marks omitted).
After reviewing BNSF’s motion with these standards in mind, the court will not set
aside the jury’s verdict with regard to liability or with regard to damages. Nor is the court
persuaded that a new trial would be appropriate in this case.
1. Elements of Koziara’s claim under FRSA
To prevail on a retaliation claim under FRSA, Koziara needed to show by a
preponderance of the evidence that: (1) he engaged in protected activity; (2) BNSF knew
that he engaged in the protected activity; (3) he suffered an unfavorable personnel action;
and (4) the protected activity was a contributing factor in the unfavorable action. 49 U.S.C.
§ 20109(d)(2); Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009). At
summary judgment, there was a genuine dispute of fact as to whether Koziara reported a
workplace injury in good faith—part of the “protected activity” that the first element
requires. But the court concluded that there was no genuine dispute concerning the second,
third, and fourth elements. BNSF now challenges whether Koziara adduced sufficient
evidence of good faith and whether the court erred by not instructing the jury on the fourth
element.
a. Good faith
BNSF contends that no rational jury could have found for Koziara on the issue of
whether he reported his workplace injury in good faith. Dkt. 215, at 3. FRSA protects only
an employee’s “good faith act done . . . to notify, or attempt to notify, the railroad carrier or

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the Secretary of Transportation of a work-related personal injury.” 49 U.S.C. § 20109(a)(4)
(emphasis added). The parties agree that reporting an injury in good faith requires both
objective and subjective reasonableness. Dkt. 215, at 4 and Dkt. 217, at 30. Thus, when
Koziara reported his injury on September 14, 2010, he must have actually believed that his
injury was work-related, and that belief must have been objectively reasonable.
According to BNSF, Koziara’s “shifting stories” about the cause of his injury
precluded the jury from finding that he reported his injury in good faith, subjectively or
objectively. BNSF cross-examined Koziara at length about the discrepancies in his account of
the injury, but he had an explanation for each of them. For example, Koziara explained that
he did not report the accident on the day that it occurred because he did not think that his
injury required a trip to the hospital. Tr. 2a, at 26:23-27:2. 1 With regard to the story that he
told his co-workers about being injured at home, Koziara testified that he made up that story
after learning from a doctor that he had fractured his tibia. Tr. 2a, at 34:6-10. At that point,
more than 72 hours had passed since the injury, and so Koziara was afraid that if he reported
the true cause of the injury, then BNSF would discipline him for making a late report. Tr. 2a,
at 34:18-21, 36:4-8. Finally, Koziara denied injuring his left leg on either of the other
occasions that BNSF identified. Tr. 2a, at 31:21-24, 32:11-34:5, 74:7-75:1.
The jury found that Koziara had shown by a preponderance of the evidence that he
reported a work-related injury in good faith. Dkt. 181. The evidence at trial supported the
jury’s finding, both in terms of Koziara’s subjective belief and the objective reasonableness of
that belief. Subjectively, the jury was entitled to credit Koziara’s testimony that when he

1

Citations to trial transcripts are by day, session, page, and line. Thus, “Tr. 2a, at 26:23,”
refers to the transcript from the second day of trial, morning session, page 26, line 23.

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reported his injury, he believed that he had been injured at work on September 9. The jury
was also entitled to credit Koziara’s explanations for the different stories that he told to his
co-workers about the injury. Koziara’s different stories might have undermined his credibility,
as BNSF argued at trial. But this evidence did not require the jury to find against Koziara on
the subjective prong. Objectively, the underlying injury is not in dispute. A wooden plank
weighing 1,200 pounds struck Koziara in the leg. A few days later, a doctor performed an xray and told Koziara that he had fractured his tibia. Koziara formally reported his injury to
BNSF shortly after receiving this information. From this evidence, the jury was entitled to
conclude that Koziara’s subjective belief was sincere and objectively reasonable.
BNSF’s motion essentially asks the court to reweigh the evidence presented in this
case and to supplant the jury’s credibility determinations with the court’s own appraisal of
Koziara’s testimony. But Rule 50 is not a mechanism for courts to reevaluate the evidence at
trial and reach their own conclusions. The relevant inquiry is whether the jury’s verdict could
reasonably be based on the evidence adduced at trial. Passananti, 689 F.3d at 659. Here, the
jury’s verdict meets this standard. The court will therefore deny BNSF’s motion on this issue.
b. Contributing factor
The fourth element of Koziara’s FRSA claim required him to show that his injury
report was “a contributing factor” to BNSF’s adverse actions. 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.” Addis v. Dep’t of Labor, 575 F.3d 688, 691 (7th Cir. 2009) (internal
citations and quotation marks omitted). Over BNSF’s objection, the court concluded at
summary judgment that Koziara had proven causation as a matter of law because his injury
report undisputedly triggered the investigations that led to his suspension and to his

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termination. Dkt. 73, at 15-18. The court determined that FRSA uses a broad conception of
causation that is favorable to employees; it allows an employee to establish causation with a
“chain of events” theory such as the one that Koziara invoked in this case.
For the most part, BNSF’s post-trial motion merely renews its objection to the court
allowing Koziara to prove causation through a “chain of events” theory, arguing that such a
framework is inconsistent with FRSA and with retaliation case law in general. BNSF
presented this position at summary judgment, in motions in limine, and through its proposed
jury instructions. The court has explained its reasons for rejecting these arguments and will
not repeat those reasons here. BNSF has preserved the issue for appeal. 2
A new aspect of BNSF’s post-trial motion is whether the causation element came back
into play at trial because of Veitz’s testimony. BNSF contends that Veitz’s testimony
“showed that Mr. Koziara’s theft (or disposal) of company property was discovered
independently of Mr. Veitz’s investigation or review of Mr. Koziara’s injury report.”
Dkt. 215, at 9. According to BNSF, it was able to break a link in the chain of events that
Koziara used to prove causation at summary judgment, and so the court should have sent the
element to the jury. The pertinent testimony was as follows:
Q. . . . Well, when did you learn about the switch ties?

2

Neither party has directed the court to binding precedent on whether FRSA allows a chain
of events theory of causation. But other district courts within this circuit have addressed the
issue recently. See, e.g., Burton v. Ill. Cent. R.R. Co., No. 13-cv-00769, 2016 WL 302109, at *7
(N.D. Ill. Jan. 25, 2016) (“This chain of events is sufficient to create a genuine issue of
material fact as to whether his injury report was a ‘contributing factor’ to Burton’s
termination.”); Armstrong v. BNSF Ry. Co., No. 12-cv-7962, 2015 WL 5180589, at *10 (N.D.
Ill. Sept. 4, 2015) (“This is known as the ‘chain of events’ approach to causation under the
FRSA, and evidence substantiating this approach shows that a triable issue of fact exists as to
causation.”).

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A. The following week after the reenactment I was in Bay City,
Wisconsin and I was informed by another employee that
possibly [Koziara] got hurt while taking switch ties at
Winona Junction on a different date.
Q. All right.
A. My investigation was completely, for the most part I guess,
over with that incident. This is a completely different
situation when I learned about the switch ties being taken.
Tr. 2a, at 128:16-129:1.
The court does not agree with BNSF that Veitz’s testimony definitively put the
element of causation back in issue. Veitz passed information about Koziara’s alleged injury—
as well as the potential theft—on to his supervisors. Tr. 2p, at 67:10-68:17. Thus, contrary to
BNSF’s contention, Veitz was at least somewhat involved in the investigation even after
learning about the stolen ties. But regardless of Veitz’s involvement, BNSF does not dispute
that its investigation was ongoing when it learned about the stolen ties. The larger
investigation is what matters for purposes of Koziara’s chain of events theory because the
railroad carrier is liable for retaliation under § 20109. Koziara reported his injury to BNSF,
the company investigated that injury, and then the company initiated disciplinary hearings
which led to adverse employment actions. The undisputed evidence at summary judgment
established this theory of causation, and Veitz’s testimony did not put the issue back into
genuine dispute.
Even if BNSF adduced evidence at trial from which the jury could doubt that
Koziara’s injury report was a contributing factor in his suspension and termination, BNSF’s
effort was too late. The court resolved the issue of causation at summary judgment because
BNSF failed to adduce evidence that put the element into genuine dispute. “[S]ummary

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judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept its version of events.” Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal citations and quotation
marks omitted). The record at summary judgment, which included Veitz’s deposition
testimony, affirmatively established that BNSF learned about Koziara’s alleged theft during
the course of investigating his injury report. See Dkt. 30 (Veitz dep. 76:12-19).
It would have been manifestly unfair to Koziara to change course mid-trial and require
him to prove an element that the court had already resolved. Veitz was BNSF’s witness, so
the company was in the best position to present his account of the relevant events at
summary judgment, or at the very latest, in a motion for reconsideration of the court’s
summary judgment order before trial. Koziara could not have reasonably anticipated Veitz’s
trial testimony regarding when he learned about the stolen ties, particularly given how starkly
that testimony conflicted with Veitz’s earlier deposition testimony on this point. Thus,
BNSF’s post-trial motion is merely a request for another bite at the summary judgment apple.
Cf. Verson Wilkins Ltd. v. Allied Prods. Corp., No. 87-cv-5325, 1990 WL 6898, at *2 (N.D. Ill.
Jan. 9, 1990). The court will deny BNSF’s request.
The cases to which BNSF cites do not compel a contrary result. For example, in
Wimberly v. Severn Trent Services, Inc., the court concluded at summary judgment that the
plaintiff had identified a similarly situated comparator for purposes of establishing a prima
facie case of race discrimination. No. 05-cv-2713, 2007 WL 666767, at *4 n.6 (E.D. Pa. Feb.
26, 2007). Although the case proceeded to trial, the court granted a Rule 50(a) motion at the
close of the plaintiff’s case. Id. at *1. As part of that ruling, the court concluded that the

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comparator was not, in fact, similarly situated to the plaintiff. Id. at *4. The court explained
the ruling in a footnote:
In my summary judgment motion memorandum, I noted that
Gerhart and Wimberly were similarly situated. . . . That finding
was based on the summary judgment record in which the
evidence showed that the plaintiff did not manage any of the
purchasing employees despite her title and the respective
purchasing duties of Gerhart and Wimberly in the Purchasing
Department were not clear. In addition, I made that finding in
considering the plaintiff's prima facie case. . . . The trial record
was very different, the roles of Gerhart and Wimberly at Severn
Trent were clarified, and my determination here relates to the
plaintiff satisfying her burden of persuasion under the third
prong of the McDonnell Douglas test.
Id. at *4 n.6. The last sentence—most of which BNSF omitted from the quotation in its brief,
see Dkt. 215, at 10—explains why Wimberly does not apply to this case. There, the court did
not revive a dispute over an element of the plaintiff’s prima facie case after having granted
summary judgment on that element. Rather, the court concluded that the comparator was
not similarly situated for purposes of an entirely different step in the McDonnell Douglas
framework.
As for the other authority that BNSF identifies, those cases dealt with courts initially
denying summary judgment then granting (or threatening to grant) a motion for judgment as a
matter of law when the evidence at trial differed from the evidence presented at summary
judgment See, e.g., United States v. Horton, 622 F.2d 144, 148 (5th Cir. 1980); Jacobsen v.
Sramek, No. 07-cv-03533, 2009 WL 1286348, at *2 (N.D. Cal. May 7, 2009). But this case
has the opposite procedural posture: at summary judgment, the court concluded that there
was no genuine dispute of fact regarding the question of causation. BNSF has not identified
precedent that requires a court to “un-grant” summary judgment mid-way through trial when

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the evidence or testimony varies slightly from the parties’ presentations at summary
judgment.
Veitz’s testimony did not put the element of causation back in issue. And even if the
testimony was relevant to causation, BNSF should have had it available to present at the
summary judgment stage of the case. BNSF is not entitled to judgment as a matter of law on
the issue of whether Koziara’s injury report was a contributing factor to his suspension and to
his termination, nor is Veitz’s testimony grounds for a new trial.
2. BNSF’s affirmative defense
BNSF next contends that, as a matter of law, no reasonable jury could have found
that the company failed to establish its affirmative defense under FRSA. The statute allows
an employer to avoid liability even if an employee makes out a prima facie case of retaliation,
provided that the employer establishes by clear and convincing evidence that it would have
taken the same adverse action in the absence of the employee’s protected activity. 49 U.S.C.
§ 42121(b)(2); Harp, 558 F.3d at 723.
At trial, BNSF sought to prove its defense by presenting evidence of consistently
applied discipline and of zero-tolerance for theft. BNSF adduced numerous examples of
employees who were disciplined harshly for theft. But Koziara was able to poke two critical
holes in the company’s defense by showing examples of how BNSF’s purported zero-tolerance
policy was not actually so consistently applied. First, there was evidence that it was
commonplace for BNSF employees to take used ties. Tr. 1p, at 77:8-79:14. Yet for all BNSF’s
instance that it consistently punished such theft with termination, Koziara was able to elicit
testimony from a long-term BNSF manager who admitted that he made no inquiry into
statements and reports of other incidents of ties taken without authorization. Tr. 3a, at 53:1-

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54:10. The same officer was also able to recount only one instance of BNSF disciplining
employees for taking ties without permission. But that instance was much more egregious—
three employees conspired to steal hundreds of ties and sell them—and BNSF’s response was
much less severe. Tr. 3a, at 50:16-52:25. BNSF’s leniency in that egregious case, combined
with the fact that the company did not investigate the employees who provided statements as
part of Koziara’s disciplinary process, entitled the jury to discredit BNSF’s assertion that it
would have terminated Koziara regardless of the injury report.
The second hole in BNSF’s defense involved trial testimony that there were at least
two other employees who were involved in the accident that injured Koziara: one operated
the front-end loader and another was standing only a few feet behind Koziara. Tr. 1p, at
98:23-25, Tr. 2a, at 122:5-123:3. Neither employee suffered an injury that day, and despite
the fact that they were directly involved in the incident, BNSF never investigated either
employee for a possible rule violation. Tr. 2a, at 126:7-10. Veitz also testified that his
investigation revealed two other employees who were “in the zone of danger,” but who never
received disciplinary action for their involvement. Tr. 2p, at 50:23-51:7, 95:9-22. In closing
arguments, Koziara’s counsel argued that this evidence seriously undermined BNSF’s
contention that it would have investigated and suspended Koziara regardless of whether he
reported his injury. There was evidence to support counsel’s argument, and the jury had an
adequate basis to find that BNSF had failed to establish its affirmative defense with regard to
Koziara’s suspension.
BNSF is not entitled to judgment as a matter of law that it established its affirmative
defense by clear and convincing evidence. Nor was the jury’s verdict against the manifest
weight of the evidence, so a new trial would not be appropriate.

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3. Damages
Finally, BNSF challenges each aspect of the jury’s damage award: lost wages, damages
for emotional distress, and punitive damages. But BNSF’s arguments on all three points
essentially re-hash those that the company made at trial, and that the jury rejected. Evidence
adduced at trial supported every component of the jury’s damage award, and so the court will
deny BNSF’s motion.
a. Lost wages
At trial, Koziara testified that his leg had healed as of January 2011, and that he was
ready to return to work at that point. Tr. 4a, at 44:19-20. Koziara identified two possible
jobs at BNSF that he could have held based on his seniority and physical limitations, 3 and he
testified that he would have performed either job for 39 months—when he would have
accrued 360 months of service credit to become eligible for retirement—if not longer. Tr. 4a,
at 45:5-46:7, 47:2-48:15. But Koziara also acknowledged that since BNSF terminated him,
he had not looked for full-time work. Tr. 4a, at 54:16-20. According to Koziara, if he had
worked for two consecutive months outside the railroad industry, then he would have lost his
entitlement to retirement benefits from the RRB. Tr. 4a, at 54:21-25, 71:12-20. Koziara also
acknowledged that his physical limitations would have prevented him from returning to work
at BNSF in the foreman position that he held in 2010. Tr. 4a, at 85:13-24. Based on
Koziara’s testimony, BNSF argued to the jury that he had failed to mitigate his damages and
that his requested amount for lost wages was too speculative. Tr. 4p, at 94:25-99:4. The jury

3

Unrelated to the incident on September 9, 2010, Koziara experienced other health issues
that limited his physical abilities. Tr. 4a, at 63:4-22.

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rejected these arguments and awarded Koziara $175,724.64 in lost wages and benefits. Dkt.
183, at 1.
BNSF first attacks the jury’s award of lost wages on the ground that Koziara failed to
mitigate his damages. To prove this defense, BNSF needed to show that: (1) Koziara “failed
to exercise reasonable diligence to mitigate [his] damages”; and (2) “there was a reasonable
likelihood that [Koziara] might have found comparable work by exercising reasonable
diligence.” Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994). As the
court instructed the jury in this case,
[i]f you find that a reasonable person would have taken steps to
reduce the loss, and if you find that Mr. Koziara did not take
such steps, then you should not include as damages any amount
that Mr. Koziara could have avoided. If you find that a
reasonable person would not have taken steps to reduce the loss
under all of the circumstances existing in the case, then you
should not consider Mr. Koziara’s failure to act when you
determine damages.
Dkt. 187, at 7. 4 Based on the evidence at trial, the jury was entitled to find that Koziara’s
fear of losing his retirement benefits reasonably entitled him to not look for alternative
employment outside the railroad industry.
BNSF protests that a plaintiff cannot satisfy his duty to mitigate damages merely by
testifying that he is afraid of losing benefits. Because that was Koziara’s strategy in this case,
BNSF contends that it was not obligated to show that reasonably comparable work was

4

BNSF did not object to this instruction, although it did object to instructing the jury that
“reasonable efforts” do not include efforts that subject the person making the effort to
unreasonable inconvenience. Tr. 4p, at 67:1-24. The court overruled this objection.
Regardless, BNSF does not raise specific instruction-based arguments in its post-trial motion,
instead contending that it was error for the court to give any instruction on mitigation
because Koziara admitted that he did not mitigate his damages.

15

available. Dkt. 218, at 8. These arguments misplace the burden of persuasion on the issue of
mitigation. Koziara’s position was that it would have been unreasonable for him to forgo his
retirement benefits by taking a job outside the industry. BNSF did not present affirmative
evidence of comparable employment that would have allayed Koziara’s concerns. Without
such evidence, the jury was free to find that Koziara acted with reasonable diligence in
considering alternative employment, which would have satisfied his duty to mitigate his
damages.
BNSF also criticizes the jury’s award for lost wages as inappropriately speculative
because Koziara admitted that he had applied for disability benefits (which contradicted his
assertion that he could continue working), and because Koziara failed to prove that he would
have received the same wage had he returned to work at BNSF. Koziara was not required to
prove his damages with mathematical precision, but he had to offer more than pure
speculation to support his request for lost wages. And he did so in this case. Koziara
identified jobs that he could have performed at BNSF, and he provided a conservative, but
realistic, estimate of the wages that he would have earned over the 39 months following his
termination. The jury found this testimony to be credible, notwithstanding BNSF’s
arguments. The court will not second-guess the jury’s view of the testimony, as there was an
evidentiary basis to support the jury’s award for lost wages in this case.
b. Compensatory damages
The court considers three central questions when reviewing the jury’s award for
compensatory damages: (1) “whether the award is ‘monstrously excessive’”; (2) “whether
there is no rational connection between the award and the evidence, indicating that it is
merely a product of the jury’s fevered imaginings or personal vendettas”; and (3) “whether

16

the award is roughly comparable to awards made in similar cases.” Farfaras v. Citizens Bank &
Tr. of Chi., 433 F.3d 558, 566 (7th Cir. 2006) (internal citations omitted). The jury’s award
passes muster on each of these inquiries.
The award was not “monstrously excessive” and it bore a rational connection to the
evidence. Koziara was a 32-year employee of BNSF, nearing retirement, and the company
improperly fired him in retaliation for reporting a workplace injury. Koziara and his wife were
forced to sell their home in response to the sudden loss of income. Mrs. Koziara testified that
her husband experienced sleepless nights following his termination, as well as general anxiety
over how to support his family. Tr. 4a, at 90:23-91:18, 93:12-94:23. Although BNSF elicited
testimony from Koziara and from his wife that much of the emotional fallout from Koziara’s
termination has subsided over the years, the evidence largely confirmed that this was a
detrimental, life-altering event for Koziara. This testimony was sufficient to support an award
of damages for emotional distress. See Merriweather v. Family Dollar Stores of Ind., Inc., 103
F.3d 576, 580 (7th Cir. 1996) (“A plaintiff’s testimony about emotional distress may, in
certain instances, of itself suffice to support an award for nonpecuniary loss.”). An award of
$125,000 is significant. But it is certainly not monstrously excessive, and it is not without a
rational connection to the evidence.
As for being roughly comparable to other awards, neither party identifies FRSA cases
involving damages for emotional distress against which the court can measure Koziara’s
award. 5 Barati v. Metro-North Railroad Commuter Railroad Company, a post-trial opinion

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BNSF cites to older, non-FRSA cases in which wrongfully discharged plaintiffs recovered
substantially less than $125,000 in compensatory damages. See Dkt. 215, at 33. Koziara cites
to other, more recent cases in which the awards were higher. See Dkt. 217, at 45. As one
federal court recently recognized, “[t]here is a dearth of caselaw interpreting claims for
emotional distress damages under FRSA.” Fields v. Se. Pa. Transp. Auth., No. 14-cv-2491,

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upholding an award of $40,000 for emotional distress in a FRSA case, therefore appears to be
something of a rarity. 939 F. Supp. 2d 143, 152 (D. Conn. 2013). The court’s decision in
Barati did not summarize the evidence that supported the damage award, as the issue was
only whether damages for emotional distress were available to plaintiffs under FRSA. Id. But
pre-trial filings in that case suggest that the plaintiff’s emotional distress was less severe than
Koziara’s. For example, the plaintiff in Barati had been employed for only a few months when
he was terminated, and although he was initially fired, the railroad company later reinstated
him with full seniority. Plaintiff’s Memorandum in Opposition to Metro-North’s Monition in
Limine Regarding Emotional Distress Damages, at 2-4, Barati v. Metro-North R.R. Co.,
No. 10-cv-1756 (D. Conn. 2013, filed Nov. 11, 2010), ECF No. 94. The discipline did not
remain on the plaintiff’s permanent record, and his claim of emotional distress was based
largely on the defendant’s delay in reinstating him and awarding him back pay. Id. In
contrast, Koziara’s termination was permanent, and it marked a sudden end to a 30-year
career. Extrapolating from Barati, and relying on the cases that Koziara cites, the court
concludes that an award of $125,000 is “roughly comparable” to awards in other cases.
c. Punitive damages
BNSF moves the court to strike the jury’s award of punitive damages because “there
[was] no connection, direct or inferential, between Mr. Koziara’s discipline and dismissal and
any form of malicious or recklessly indifferent act by managerial employees” and because
“BNSF established at trial that it has made a good faith effort to establish, implement, and
comply with its stringent and thorough anti-retaliation policy.” Dkt. 215, at 35. The court
disagrees with BNSF’s appraisal of the evidence adduced at trial.
2015 WL 4610876, at *6 (E.D. Pa. July 31, 2015).

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BNSF’s evidence of anti-retaliation policies and training cuts both ways. During the
damages phase of the trial, BNSF presented evidence of its internal training on handling
injury reports and on the importance of not retaliating against injured employees. The
company’s officers also testified to the specific measures that they took to handle Koziara’s
report in this case. From this evidence, a jury certainly could have concluded that punitive
damages were not appropriate.
But as the court’s instruction on punitive damages stated, the jury was allowed to
assess punitive damages if it found that BNSF’s managerial employees “disciplined Mr.
Koziara with knowledge that it would violate the law, or in reckless disregard of Mr.
Koziara’s rights under the FRSA.” Dkt. 187, at 7. Thus, Koziara’s counsel argued to the jury
that instead of establishing a good faith effort to avoid retaliation, the testimony from
BNSF’s officers established that they knew about Koziara’s rights under FRSA, and that they
terminated him for filing an injury report in spite of knowing that it was illegal to do so. The
jury agreed, and there was evidence to support its finding.
For example, several witnesses confirmed that BNSF did not investigate or discipline
the non-injured employees who were involved in the incident. Tr. 2p, at 95:9-22. Nor did
BNSF investigate other instances of employees stealing ties for personal use when confronted
with evidence that this was a common practice. Tr. 3a, at 53:1-54:10. One thing that these
non-disciplined employees shared in common was that they never reported workplace injuries
to BNSF; Koziara did. Thus, the jury could conclude that BNSF singled out Koziara for
discipline because he reported an injury and because the company wanted to dissuade other
employees from doing so. Moreover, Koziara elicited testimony that BNSF’s officers have a
compensation-based incentive, however small, that is linked to the number of injuries that

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the company reports. Tr. 2a, at 96:10-97:15, Tr. 3a, at 92:4-94:9. Finally, with regard to
BNSF’s evidence of comprehensive anti-retaliation training, Koziara raised significant doubts
as to whether the decision makers in this case had received FRSA-specific training at the time
that they terminated Koziara. Tr. 4p, at 45:11-54:3. From this evidence, the jury was entitled
to reject BNSF’s argument that the company had undertaken a good faith effort to
implement an anti-retaliation policy.
B. Koziara’s motion for equitable relief
Koziara moves for equitable relief in the form of an order requiring BNSF to:
(1) report to the RRB that Koziara earned $175,724.64 in compensation from January 2011
to April 2014; (2) withhold Koziara’s share of any RRB taxes from the award of lost wages;
and (3) pay its and Koziara’s RRB taxes. Dkt. 213, at 6. The thrust of Koziara’s motion is
that he wants BNSF to do everything in its power to ensure that the RRB credits him with 39
months of service, which will bring his total service to 30 years. BNSF opposes Koziara’s
motion on the grounds that it is an attempt to short-circuit the statutory and regulatory
frameworks under which the RRB reviews claims for benefits. The court agrees and will
therefore deny Koziara’s motion.
The RRB will eventually determine whether Koziara’s lost wage award in this case
qualifies as compensation for time lost. 20 C.F.R. § 211.3. As part of this determination, the
RRB may consider whether Koziara maintained his employment relationship with the
railroad industry throughout the relevant 39-month period. Id. § 204.6. BNSF and Koziara
will have the opportunity to present evidence and argument on this point. Id. § 204.2. Any
final order of the RRB will be reviewable by a United States Court of Appeals. 45 U.S.C.
§ 231g; Sass v. U.S. R.R. Ret. Bd., 305 F. App’x 288, 290 (7th Cir. 2008).

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Koziara acknowledges that this court cannot directly require the RRB to give him
service credit, and so his strategy is to obtain an equitable order locking BNSF into
supporting his future request to the RRB (which the company is apparently reluctant to do).
Koziara observes that in other cases, BNSF has insisted that it be allowed to withhold an
employee’s share of RRB benefits. See, e.g., Cowden v. BNSF Ry. Co., No. 08-cv-1534, 2014
WL 3096867, at *12 (E.D. Mo. July 7, 2014). But these cases confirm only that BNSF can
support an employee’s application for service credit; Koziara has not identified authority
holding that BNSF must do so as a result of Koziara’s success on a retaliation claim under
FRSA. Any inconsistency between BNSF’s position in this case and its position in other cases
is a matter of strategy for the company, and not a basis from which the court can require
BNSF to support Koziara’s case before the RRB.
BNSF’s reluctance in this case appears to be based on its view of the merits of
Koziara’s retaliation claim; particularly his contention that he was still able to work during
the 39-months that he was receiving disability benefits. Koziara contends that in light of the
jury’s verdict, BNSF should be estopped from presenting any such arguments to the RRB.
But this court is not the proper forum in which to settle the question of estoppel. That
determination would rest with the tribunal in which BNSF raises potentially precluded
arguments.
It may be in BNSF’s best interest to withhold Koziara’s share of the RRB taxes. And it
may even be futile for the company to oppose Koziara’s request for 39 months of service
credit. But those are strategic decisions for BNSF to make, not equitable relief that the court
must provide to Koziara under FRSA. The court will deny Koziara’s motion.

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ORDER
IT IS ORDERED that:
1. Defendant BNSF Railway Company’s motion for judgment as a matter of law,
Dkt. 212, is DENIED.
2. Plaintiff Michael Koziara’s motion for equitable relief, Dkt. 213, is DENIED.
Entered February 16, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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