Michael A. Frost v. BNSF Railway Company

Michael Frost sued the BNSF Railway Company, alleging

that it violated the Federal Railroad Safety Act (FRSA) when

it disciplined and ultimately terminated him after he

committed a pair of safety rule violations and filed an injury

report. At trial, the district court instructed the jury that

BNSF could not be liable if it terminated Frost due to an

“honest belief” that he violated the company’s safety rules.

The jury returned a verdict for BNSF. We review the

propriety of the “honest belief” jury instruction. Because it

is inconsistent with the FRSA’s clear statutory mandate and

our prior caselaw, we reverse and remand for a new trial.

4 FROST V. BNSF

I.

BNSF is a large railway company that operates freight

trains throughout the United States. Due to the many

potential hazards associated with powerful locomotives

operating near train and track workers, BNSF imposes a

number of safety rules on its employees to minimize risks and

prevent injuries. Among other things, those rules prohibit

employees from approaching—or “fouling”—a track unless

they have the proper authority and a work-related reason to be

near the tracks.

BNSF hired Frost as a track laborer in June 2011. Within

the first two years of his employment, Frost was disciplined

twice for fouling the track. The first violation occurred on

April 18, 2012. Frost was working with a crew that was

repairing a section of track near Brimstone, Montana. The

crew was removing and replacing a side track that ran

adjacent to a main line. The crew members secured track

authority—i.e., permission to be near the tracks because no

trains would be running on the tracks—for both tracks at the

start of their shift in order to move their equipment into

position on the side track. The crew’s foreman, George

Schultz, released the crew’s track authority for the main line

once the equipment was in place on the side track, but he

apparently failed to relay that information to Frost or the rest

of the work crew.

During the course of the shift, Frost believed that the

repair equipment was not being anchored properly so he

moved toward the main line track to get a better view. At that

point, a train traveling approximately 60 miles per hour

passed by on the main line, narrowly missing Frost. The

crew stopped working and Frost was taken to the hospital for

FROST V. BNSF 5

examination. On April 20, 2012, BNSF issued a notice of

investigation to Frost and Schultz regarding the near-miss

incident. Frost returned to work a few days later and filed an

injury report describing his injury as “PTSD following a

traumatic incident.”

BNSF held a disciplinary hearing in July 2012. Frost

argued at the hearing that he was being singled out because

several of his fellow laborers (who had not filed injury

reports) acknowledged that they were also near the track but

they were not disciplined. Frost also claimed that inspecting

the equipment’s anchoring pattern was a legitimate jobrelated

reason for approaching the main line. The hearing

officer, Robert Rindy, rejected both arguments. Rindy

reviewed video from the train which showed no other

laborers near the main line track. He also concluded that

Frost could have checked the anchoring pattern from other

locations without approaching the main line track. Because

Rindy determined that Frost fouled the track and committed

a Level S (Serious) safety violation, Frost received a 30-day

record suspension and was placed on a 36-month review

period for that incident.1 On October 9, 2012, Frost

responded by filing an FRSA retaliation complaint with

OSHA.

Frost’s second track violation occurred on November 8,

2012, when he was working on a crew in Wyoming as a

grapple truck driver. Frost arrived at the work site and parked

his truck by a railroad crossing with the back end of the truck

overhanging the track. Frost then entered a trailer where

several other BNSF employees were located, and apparently

said something like “I guess I better get the authority since

1 Schultz, the crew foreman, was also disciplined for this incident.

6 FROST V. BNSF

I’m already fouling the track.” Because BNSF employees are

required to know the precise details of their track authority

before fouling a track, the other employees became concerned

and a supervisor was called. The supervisor spoke with Frost

and determined that he did not appear to have secured track

authority before parking his truck. The supervisor removed

Frost from service and reported the incident to Keith

Samples, a division manager.

BNSF issued a notice of investigation and conducted a

hearing regarding the second incident in January of 2013.

Following the hearing, Samples found that Frost did not know

the details of his track authority and that he had violated

BNSF safety rules. Samples then concluded that Frost should

be discharged due to the seriousness of the violation and the

fact that it occurred so soon after the first disciplinary

incident. It is undisputed that Frost would not have been

discharged if the first incident had not occurred.

Frost requested reinstatement. After an internal review,

BNSF decided to reinstate Frost, due to a concern that BNSF

would not be able to justify the discipline imposed for the

April 2012 incident if Frost challenged his dismissal before

an arbitrator. Frost was reinstated, with back pay, and BNSF

removed the April 2012 disciplinary incident from his record.

Nevertheless, Frost filed suit in September of 2015

alleging retaliation under the FRSA for Frost’s engagement

in protected activities—i.e., for reporting the PTSD injury

following the first incident and for filing an OSHA complaint

alleging disciplinary retaliation shortly thereafter. Frost’s

complaint alleged that these protected activities were

contributing factors to BNSF’s decision to terminate him, and

FROST V. BNSF 7

he sought an award of emotional distress damages, punitive

damages, and attorney’s fees.

The matter was tried to a jury over four days. At trial,

Rindy testified that he disciplined Frost because such

discipline was required by BNSF’s employee performance

accountability policy, and not because Frost had filed an

injury report or engaged in any other protected activities.

And Samples testified that when he decided in 2013 that Frost

should be discharged, he was not aware that Frost had filed an

OSHA complaint concerning the first incident. At the close

of the evidence, the trial court instructed the jury, over Frost’s

objection, that:

BNSF cannot be held liable under the Federal

Railroad 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.

The jury returned a verdict in favor of BNSF.

Frost moved for a new trial, arguing that the honest belief

jury instruction was erroneous and that it substantially

prejudiced him. He also argued the he deserved a new trial

because BNSF improperly withheld evidence regarding a

potential retaliatory motive for terminating him—a

“scorecard” policy that rated each manager, in part, on the

number of injuries that occurred on his or her watch. The

trial court acknowledged that BNSF appeared to “have hidden

the ball” by not producing the scorecard policy in discovery,

but it found no prejudice. The district court was also

8 FROST V. BNSF

unpersuaded by Frost’s challenge to the honest belief

instruction. Frost appealed.2

II.

We review de novo whether a jury instruction properly

states the elements that must be proved at trial. Chuman v.

Wright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is

erroneous when, viewing the instructions as a whole, the

“substance of the applicable law was [not] fairly and correctly

covered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d

1336, 1339 (9th Cir. 1986) (alteration in original and citation

omitted). If there is an error, we presume that the error was

prejudicial and the non-moving party bears the burden of

establishing that “it is more probable than not” that a properly

instructed jury “would have reached the same verdict.”

Galdamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)

(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.

2005)) (internal quotation marks omitted).

III.

We first examine the appropriate standards governing a

claim of unlawful discrimination under the FRSA. As we

recently explained in Rookaird v. BNSF Railway Co.,

908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the

2 Because we reverse the district court’s denial of Frost’s request for

a new trial on the basis of the erroneous honest belief jury instruction, we

do not address Frost’s claim that he is also entitled to a new trial because

BNSF withheld relevant and material documents in discovery.

FROST V. BNSF 9

AIR-213 framework set forth in 49 U.S.C. § 42121(b) for

claims of unlawful discrimination. Id. at 459.4

To establish a claim of unlawful discrimination under

the FRSA, the plaintiff must prove by a preponderance of

the evidence that his or her protected conduct “was a

contributing factor in the unfavorable personnel action

alleged in the complaint.” Id. at 460 (citing 49 U.S.C.

§ 42121(b)(2)(B)(iii)). 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). If the

plaintiff succeeds, the employer can attempt to rebut the

allegations and defeat the claim by demonstrating “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)(iv).

Importantly, 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

3 “AIR-21” refers to the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61

(2000), which includes protections for whistleblowers and prohibits

discrimination against an air carrier employee who reports information

related to air carrier safety. Congress expressly adopted the same standard

for the FRSA. 49 U.S.C. § 20109(d)(2).

4 We are aware that under this framework there are two stages, a

prima facie stage and a substantive stage. We are here concerned

primarily with the substantive stage, as this appeal causes us to consider

only whether the honest belief instruction altered the substance of what

needed to be proven at trial.

10 FROST V. BNSF

“tend[ed] to affect” the decision in some way. Id.

§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.

BNSF argues that the FRSA is a “discrimination statute”

and that plaintiffs must therefore affirmatively prove that

their employers acted with discriminatory intent or animus in

order to bring claims for unlawful retaliation. We recognize

that the FRSA, by its terms, describes and forbids intentional

retaliation, 49 U.S.C. § 20109(a), meaning that employers

must act with impermissible intent or animus to violate the

statute. What BNSF misses is that the only proof of

discriminatory intent that a plaintiff is required to show is that

his or her protected activity was a “contributing factor” in the

resulting adverse employment action. Showing that an

employer acted in retaliation for protected activity is the

required showing of intentional discrimination; there is no

requirement that FRSA plaintiffs separately prove

discriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,

in Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we

reviewed claims under the Energy Reorganization Act’s

whistleblower retaliation protections that employ the same

statutory framework as the FRSA. Id. at 480. We explained:

“Under this framework, the presence of an employer’s

subjective retaliatory animus is irrelevant. All a plaintiff

must show is that his ‘protected activity was a contributing

factor in the adverse [employment] action.’” Id. at 482

(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).

Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also

involved a retaliation claim arising in the context of a statute

with the same “contributing factor” framework. There, we

explained that to meet her burden at the prima facie stage a

plaintiff need not “conclusively demonstrate the employer’s

retaliatory motive.” Id. at 750 (emphasis added). Rather, the

employer’s retaliatory motive was established by proving that

FROST V. BNSF 11

the protected conduct was a contributing factor to the

employer’s adverse action.

More recently, in Rookaird, we quoted the Eighth

Circuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d

786 (8th Cir. 2014), and said that “‘the contributing factor

that an employee must prove is intentional retaliation

prompted by the employee engaging in protected activity.’”

Rookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at

791) (alteration omitted). BNSF cites this language from the

Kuduk decision to argue that the FRSA requires proof of

discriminatory animus, separate from and beyond the

statutorily required evidence that the plaintiff’s protected

conduct was a contributing factor in the adverse employment

action. But as Tamosaitis and Coppinger-Martin have

shown, we have already rejected that premise as inconsistent

with the FRSA’s articulation of each party’s required

evidentiary burden. In fact, in Kuduk, the Eighth Circuit

relied on our Coppinger-Martin decision and acknowledged

that plaintiff need not provide “conclusive[]” proof of the

employer’s animus to establish the plaintiff’s prima facie

case. See Kuduk, 768 F.3d at 791. Rookaird’s citation to

Kuduk does not imply, much less impose, an obligation to

prove retaliatory intent that is not included within the FRSA’s

clear and explicit statutory scheme. Instead, Rookaird simply

confirms that although intent or animus is part of an FRSA

plaintiff’s case, showing that plaintiff’s protected conduct

was a contributing factor is the required showing of intent or

“intentional retaliation[.]” Id. That is, by proving that an

employee’s protected activity contributed in some way to the

employer’s adverse conduct, the FRSA plaintiff has proven

that the employer acted with some level of retaliatory intent.

12 FROST V. BNSF

Consistent with the language of 49 U.S.C.

§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,

Coppinger-Martin, and Rookaird, we hold that although the

FRSA’s prohibition on “discriminat[ing] 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.5

There is no requirement, at either the prima facie stage or the

substantive stage, that a plaintiff make any additional

showing of discriminatory intent.

IV.

A.

Frost argues that the district court’s honest belief jury

instruction misstated the applicable law. We agree.

The district court instructed the jury that:

BNSF cannot be held liable under the Federal

Railroad 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.

5 This holding is consistent with recent authority from the Third

Circuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,

158 (3d Cir. 2013), but we recognize that it may conflict with authority

from the Seventh and Eighth Circuits. However, we are bound by our

prior caselaw as well as the explicit statutory language of 49 U.S.C.

§§ 20109(d) and 42121(b)(2)(B).

FROST V. BNSF 13

That instruction is not consistent with the FRSA’s

statutory scheme. Frost needed to prove only that his

protected conduct (filing an injury report and an OSHA

complaint) was a contributing factor to his ultimate

termination. To rebut Frost’s case, BNSF had to prove that

the same discipline would have been imposed with or without

the injury report or the OSHA complaint. See 49 U.S.C.

§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This

necessarily means it was possible for Frost to show retaliation

even if BNSF had an honestly-held, justified belief that he

fouled the track. Frost was not required to show that his

injury report was the only reason or that no other factors

influenced BNSF’s decision to terminate him. Nor does the

instruction’s use of “based on” foreclose the possibility that

an impermissible factor or consideration contributed to the

decision to discipline Frost. As Rookaird explained,

“contributing factors” may be quite modest—they include

“any factor” which “tends to affect in any way the outcome

of the decision.” Id. at 461 (internal quotation marks

omitted). Under the AIR-21 standard, Frost would be entitled

to relief even if his filing of an injury report played only a

very small role in BNSF’s decision-making process.

Instructing the jurors that they could find for BNSF by

looking only at whether BNSF honestly believed that Frost

broke a rule risked denying Frost a remedy to which he may

be entitled under the statute, particularly because the evidence

here appears to show relatively clearly that Frost fouled the

track. The instruction may have encouraged the jury to skirt

the actual issue and improperly focus on whether discipline

was justified for Frost’s safety violation instead of whether

his protected conduct “tend[ed] to affect in any way” the

decision to terminate him. Id. (internal quotation marks

omitted). The instruction may have short-circuited the jury’s

14 FROST V. BNSF

deliberation by offering a path to finding for BNSF without

requiring that it assess all of the relevant statutory burdens.

BNSF argues that honest belief instructions have been

approved in FRSA cases, citing Armstrong v. BNSF Railway

Co., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury

was instructed that:

Defendant cannot be held liable under the

FRSA if you conclude that Defendant

terminated Plaintiff’s employment based on

its honestly held belief that Plaintiff did not

engage in protected activity under the FRSA

in good faith.

Id. at 381 (emphasis added).

Armstrong does not help BNSF because the primary

dispute in that case was about whether the plaintiff had

actually engaged in protected conduct in the first place, not

whether the protected conduct was a contributing factor to the

plaintiff’s discipline. Id. at 382. Because there was evidence

in Armstrong that the employer may have honestly believed

that the employee did not engage in protected activity,

Armstrong’s honest belief instruction was not improper. That

said, the only conclusion to be drawn from Armstrong is the

recognition that it would not be possible to show that an

employer retaliated in response to an employee engaging in

protected activity if the employer could demonstrate that it

honestly believed no protected activity had occurred.6

6 Even under the circumstances in Armstrong, we note that the

Seventh Circuit only tepidly approved the instruction as not the “clearest

possible statement of the applicable law[.]” 880 F.3d at 382.

FROST V. BNSF 15

Because there was no dispute that Frost engaged in

protected conduct, Armstrong is distinguishable and the

district court’s use of the honest belief instruction was

therefore legally erroneous.

B.

We next determine whether the erroneous honest belief

instruction warrants a new trial.

Frost provided evidence that other BNSF employees

fouled the track during the April 2012 incident, but that they

did not file injury reports and were not disciplined. The

jurors could construe this evidence of unpunished trackfoulers

as proof of disparate treatment and retaliatory

conduct—i.e., that Frost’s injury report was a contributory

factor to his termination. However, the jurors also may have

found that evidence not very credible or they may have

instead believed the testimony of BNSF’s witnesses that

Frost’s injury report played no part in the decision to

discipline him. Though a properly instructed jury may have

reached a verdict for BNSF, we must presume prejudice

where an erroneous jury instruction is given. See Galdamez,

415 F.3d at 1025. The burden at this stage is thus on BNSF

to show it is more probable than not that the jury would have

reached the same verdict without the honest belief instruction.

Id. BNSF does not satisfy that burden.

BNSF’s counsel acknowledged during its argument

before our court that we simply do not know exactly how the

jury evaluated the evidence in this case. The verdict form

was relatively sparse, asking only two questions: (1) whether

Frost had met his prima facie case of showing his protected

activity was a contributing factor; and (2) whether BNSF

16 FROST V. BNSF

successfully rebutted Frost’s case by showing that it would

have imposed the same disciplinary action with or without the

protected conduct. The jury answered “no” to the first

question and did not answer the second.

Because we do not know how the jurors applied the

honest belief instruction, we cannot find that the presumption

of prejudice is rebutted. BNSF presented strong evidence

(video from the train) that Frost fouled the track. The jurors

therefore may have felt it unnecessary to unravel any

potential factual tensions—e.g., the dispute between Frost’s

and BNSF’s witnesses about whether other laborers were

fouling the track at the same time Frost was—or they might

have discounted questions about whether Frost’s injury report

played any role (even if only a small one) in BNSF’s decision

to discipline Frost. We also do not know whether the jurors

concluded that Frost would have been terminated whether or

not he filed an injury report because they did not reach that

question on the verdict form. We are therefore bound to

presume the improper instruction was prejudicial. See

Galdamez, 415 F.3d at 1025.

We also cannot conclude that the presence of other,

accurate instructions eliminated the possibility that prejudice

resulted from the honest belief instruction, although we

presume that juries listen to and follow instructions, and we

have previously found an erroneous jury instruction to be

harmless where the instructions as a whole were accurate.

See, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.

1973). There is relatively clear evidence that Frost

committed two safety violations, and the honest belief

instruction given here effectively allowed the jury to find for

BNSF on that basis alone. Because the erroneous instruction

provided a shortcut that the jury may well have taken, the jury

FROST V. BNSF 17

may not have decided whether Frost’s injury report was a

factor that contributed to his termination or whether BNSF

would have terminated him even if he had not reported an

injury. Accordingly, the other jury instructions in this case do

not rebut the presumption of prejudice.

BNSF suggested during argument before our court that

lay jury members would have understood the instruction’s use

of “based on” to mean “solely or exclusively based on,” so the

jury must have concluded that Frost’s injury report was not a

factor (contributory or otherwise) to his termination. In our

view, that is not an obvious or intuitive conclusion. It is just

as likely that a lay juror would conclude that if a certain

factor was the primary cause of a given consequence, the

consequence was “based on” that factor, regardless of

whatever other causative factors were shown at trial. More

importantly, the record in this case does not permit much of

an inference either way, and in the absence of more precise

language these (and perhaps other) interpretations of this

instruction were left available to the jury. BNSF’s

speculation about how the jury might have applied the

erroneous honest belief instruction therefore cannot rebut the

presumption of prejudice or effectively show it is more

probable than not that jurors would have reached the same

verdict with or without the honest belief instruction.

Galdamez, 415 F.3d at 1025.

The honest belief instruction was legally erroneous and

BNSF has failed to rebut the presumption that the improper

instruction prejudiced Frost. Accordingly, we reverse the

district court’s determination and remand for a new trial.

REVERSED AND REMANDED.

Editor's Comment: The Defendant's lawyers got the trial judge to commit a reversal error to increase the likelihood that the Defendant would get the verdict at the end of the trial. As a result, the the Plaintiff's attorneys and the Plaintiff spent time and money successfully appealing the judgment entered by the court while the defense lawyers make more money. The Court of Appeals reversed and the Plaintiff and his lawyers will spend more time and money retrying the case and the defense lawyers will get paid more by the Defendant to retry the case. Even if the Plaintiff ultimately wins, he and his lawyers will receive less compensation for the work done and injuries sustained.