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Date: 11-09-2018

Case Style:

Curtis Rockaird v. BNSF Railway Company

Case Number: 16-35786

Judge: Sandra S. Ikuta

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: Christopher William Bowman and William G. Jungbauer

Defendant's Attorney: Jacqueline M. Holmes for BNSF
____________________________________________________

NIcholas D. Thompson and Lawrence M. Mann for Amicus Curiae Academy of Rail Labor Attorneys.

Description: These appeals follow a civil jury trial. The jury found
that BNSF Railway Company violated the anti-retaliation
provision of the Federal Railroad Safety Act (“FRSA”) when
BNSF fired Curtis Rookaird for, in part, refusing to stop
performing an air-brake test on a 42-car train that he was
tasked with moving. Rookaird was awarded over $1.2
million in damages. BNSF appeals issues related to its
liability and damages; Rookaird cross-appeals issues related
to damages. For the reasons below, we affirm in part,
reverse in part, vacate the district court’s judgment, and
remand.
I. Background
A. Factual Background
BNSF operates a freight railroad in the western United
States and Canada. It serves customers across North
America, including northwest Washington known as Cherry
Point. The Cherry Point rail line connects to a main line that
runs from Bellingham to BNSF’s Swift Depot. BNSF
employs three-person “switcher” crews that serve BNSF
customers in Cherry Point by switching or reassigning
freight cars as part of delivering or picking up freight. In
early 2010, BNSF relocated its switcher crews from
Bellingham to the Swift Depot to reduce travel time to
Cherry Point, thereby reducing the overtime BNSF had to
pay those crews.
Curtis Rookaird was a conductor for – and thus in charge
of – one such crew. On February 23, 2010, Rookaird and his
crew worked a scheduled eight-hour shift beginning at
ROOKAIRD V. BNSF RAILWAY CO. 5
2:30 p.m. The “Trainmaster,” Dan Fortt, tasked Rookaird’s
crew with moving a 42-car train in Custer from the main line
to a different set of tracks before traveling to Cherry Point to
service BNSF’s customers.
Three hours into their shift, the crew arrived in Custer
after securing two engines in Ferndale (south of Custer).
Before moving the 42-car train, Rookaird’s crew performed
a 20- to 45-minute air-brake test on the train. During the test,
Fortt said on the radio to Rookaird and his crew, “I’m not
from around here, and I don’t know how you guys do
anything. But from where I’m from, we don’t have to air
test the cars.” Fortt did not tell the crew to stop. Rookaird’s
crew replied that they were going to finish the test. They
did, and then began moving the 42-car train.
About ninety minutes later, around five hours into their
shift, Rookaird’s crew had not yet completed moving the 42-
car train in Custer and had not yet serviced any Cherry Point
customers. Fortt and Stuart Gordon, another one of
Rookaird’s supervisors on duty that day, were frustrated
with what they believed to be a slow pace of work by
Rookaird’s crew. Fortt ordered Rookaird’s crew to stop
work and report back to the Swift Depot because another
crew was going to relieve them. Gordon believed that
Rookaird was intentionally slowing down work as a way to
get back at BNSF for reducing overtime hours.
Back at the Swift Depot, around 7:50 p.m., Gordon
questioned Rookaird about the air-brake test. Gordon told
Rookaird that he thought the test was unnecessary. Gordon
also asked Rookaird if he would be happy with the level of
service he received that day if he were a BNSF customer;
Rookaird told him no. Gordon then told Rookaird and his
crew that they were done for the day and to clock out and go
home. Rookaird printed his timesheet at 8:02 p.m., reporting
6 ROOKAIRD V. BNSF RAILWAY CO.
his off-duty time at 8:30 p.m. Around 8:15 p.m., Gordon
again told Rookaird to go home; he did, but he did not sign
his timesheet before leaving.
BNSF initiated an investigation into Rookaird to
determine whether any disciplinary action was warranted.
On March 19, BNSF fired Rookaird for his “failure to work
efficiently . . . on February 23,” his “dishonesty when
reporting [his] off duty time,” his failure to sign his
timesheet, and his “failure to comply with instructions when
instructed to leave the property . . . on February 23.”
B. The FRSA
The FRSA prohibits railroad operators from retaliating
against employees who refuse in good faith to violate
railroad safety laws or regulations. The FRSA provides:
A railroad carrier . . . may not 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 lawful, good faith . . .
refus[al] to violate or assist in the violation of
any Federal law, rule, or regulation relating
to railroad safety . . . .
49 U.S.C. § 20109(a), (a)(2).
An employee who alleges an FRSA anti-retaliation
violation may file a complaint with the Secretary of Labor.
Id. § 20109(d)(1). If the Secretary fails to issue a final
decision within 210 days, the employee may bring a civil
action in federal court. Id. § 20109(d)(3).
ROOKAIRD V. BNSF RAILWAY CO. 7
An FRSA retaliation complaint proceeds in two stages,
each of which is governed by a burden-shifting framework.
First, the complainant must “make[ ] a prima facie showing
that” protected activity “was a contributing factor in the
unfavorable personnel action.” 49 U.S.C.
§ 42121(b)(2)(B)(i). If the complainant makes a prima facie
showing, the burden shifts to the employer to prove “by clear
and convincing evidence, that the employer would have
taken the same unfavorable personnel action in the absence
of” the protected activity. Id. § 42121(b)(2)(B)(ii). Then, to
substantively establish an FRSA violation, the complainant
must prove by a preponderance of the evidence “that any
[protected activity] was a contributing factor in the
unfavorable personnel action alleged in the complaint.”
49 U.S.C. § 42121(b)(2)(B)(iii); see 29 C.F.R.
§ 1982.109(a). If the complainant proves the substantive
case, then the burden again shifts to the employer to prove
“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).
C. District Court Proceedings
Rookaird brought this action pursuant to 49 U.S.C.
§ 20109(d)(3). Rookaird alleged that BNSF violated the
anti-retaliation provision of the FRSA because BNSF fired
him for, in part, refusing to stop performing the air-brake
test. BNSF insisted that it did not fire him for that reason.
BNSF also asserted its affirmative defense under 49 U.S.C.
§ 42121(b)(2)(B)(iv) that it would have fired Rookaird even
if he had not performed the air-brake test.
The district court held that Rookaird was required to
prove four elements by a preponderance of the evidence:
“that (1) he engaged in a protected activity; (2) the employer
8 ROOKAIRD V. BNSF RAILWAY CO.
knew he engaged in the allegedly protected activity; (3) he
suffered an unfavorable personnel action; and (4) the
protected activity was a contributing factor in the
unfavorable personnel action.” The district court granted
Rookaird summary judgment on all but the first element of
his substantive case. The district court held that BNSF knew
that Rookaird performed the air-brake test, that his
termination was an adverse action, and that the air-brake test
was a contributing factor in his firing. With respect to the
contributing-factor element, the district court found that the
“cited failure to work efficiently cannot be unwound from
Rookaird’s decision” to perform the air-brake test.
The issues for the jury were whether Rookaird’s refusal
to stop the air-brake test was FRSA-protected activity,
BNSF’s affirmative defense, and damages. Before closing
arguments, the district court concluded that – although
Rookaird’s crew was not legally required to perform the airbrake
test under the circumstances, describing the issue as a
“close call” – a reasonable jury could find that Rookaird
engaged in protected activity because there was evidence
that Rookaird “had a subjectively and objectively reasonable
good faith belief that the air-brake test was required.”1 The
jury returned a verdict for Rookaird, finding that Rookaird’s
refusal was FRSA-protected activity. The Court awarded
Rookaird $1.2 million in damages and entered final
judgment.
These appeals followed.
1 The district court treated the propriety of the air-brake test as an
issue for the court to resolve, not the jury. We express no view either on
the air-brake test’s propriety or on whether that question should have
been decided by the jury rather than the court.
ROOKAIRD V. BNSF RAILWAY CO. 9
II. Discussion
A. Protected Activity
BNSF appeals the district court’s denial of BNSF’s
motion for judgment as a matter of law that Rookaird did not
engage in protected activity. We review de novo a district
court’s denial of a motion for judgment as a matter of law.
First Nat’l Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058,
1067 (9th Cir. 2011). Judgment as a matter of law is proper
only when “the evidence permits only one reasonable
conclusion, and that conclusion is contrary to the jury’s
verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.
2006). “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’l Mortg. Co., 631 F.3d at
1067 (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.
2002)).
BNSF argues that Rookaird did not engage in protected
activity as a matter of law for two reasons. First, BNSF
insists there was insufficient evidence from which the jury
could have found that Rookaird “refused” to violate a
railroad safety rule or regulation because he was never
explicitly ordered to stop the air-brake test. Second, BNSF
argues that 49 U.S.C. § 20109(a)(2) protects only refusals to
engage in conduct that would be an actual violation of
railroad rules or regulations, and thus that Rookaird did not
engage in protected activity because the air-brake test was
not legally required.
We hold that the district court did not err in denying
BNSF’s motion for judgment as a matter of law with respect
to whether Rookaird engaged in FRSA-protected activity.
10 ROOKAIRD V. BNSF RAILWAY CO.
1. Refusal
Under the FRSA, protected activity includes an
“employee’s lawful, good faith . . . refus[al] to violate or
assist in the violation of any Federal law, rule, or regulation
relating to railroad safety or security.” 49 U.S.C.
§ 20109(a), (a)(2). By the FRSA’s plain terms, an employee
must “refuse” to violate a rule or regulation, necessarily
requiring some action by the employer (e.g., an order to
perform or not perform, or to start or stop, a particular action)
which prompts the employee’s “refusal.” See Refuse,
Merriam-Webster’s Collegiate Dictionary (10th ed. 2001)
(“to show or express unwillingness to do or comply with”);
cf. Quinn v. United States, 349 U.S. 155, 165–66 (1955)
(holding that, to sustain a conviction under 2 U.S.C. § 192
for refusing to answer questions before Congress, a witness
must be “clearly apprised that the committee demands his
answer notwithstanding his objections”). Thus, an employee
who simply performs basic job duties has not “refused” to
violate any rule or regulation unless those job duties are
covered by a rule or regulation. See Sievers v. Alaska
Airlines, Inc., ARB No. 05-109, 2008 WL 316012, at *3–4
(Jan. 30, 2008).
BNSF maintains that Fortt’s questioning of the air-brake
test’s necessity constituted insufficient evidence that
Rookaird ‘refused’ to violate a railroad safety rule or
regulation because it is undisputed that Fortt never explicitly
directed Rookaird to stop the test. But an employee’s refusal
need not be precipitated by an explicit directive in order for
the employee’s refusal to be FRSA-protected activity. The
word “refuse” in the FRSA is a clear reference to the
employee’s conduct, not the employer’s. And while
certainly an explicit order can be ‘refused,’ statements or
conduct of the employer can amount to an implicit order, and
ROOKAIRD V. BNSF RAILWAY CO. 11
an employee can refuse to follow that implicit order just as
much as an explicit one. See Douds v. Milk Drivers & Dairy
Emp. Local No. 680, 133 F. Supp. 336, 340 (D.N.J. 1955)
(“On the other hand, ‘refusal’ connotes an intentional
unwillingness on the part of the employee to do what he is
asked to do. This asking may be by an explicit direct order,
but since ‘actions speak louder than words’ . . . , no
particular form of words is essential.”)
Here, there was sufficient evidence to support the jury’s
finding that Rookaird refused, in good faith, to violate a
railroad safety rule or regulation. Fortt’s statements
questioning the need for the air-brake test came in the middle
of the test. Rookaird responded that the crew was going to
finish the test, and they did so. Fortt was Rookaird’s
supervisor. And the substance of Fortt’s statements – “I’m
not from around here,” “I don’t know how you guys do
anything,” and “from where I’m from, we don’t have to air
test the cars” – are exactly the kind of statements, taken in
context, that a reasonable jury could have found sufficient to
prompt Rookaird to ‘refuse’ to stop the test.
2. Actual Violation
The parties vigorously disputed before the district court
whether Rookaird was legally required to perform the airbrake
test under the circumstances. The district court
ultimately concluded that he was not but described the issue
as a “close call.” The district court went on to hold that the
good-faith requirement in subsection (a) of 49 U.S.C.
§ 20109 required Rookaird to prove that he “must have had
a subjectively and objectively reasonable good faith belief
that the air-brake test was required by federal law or
regulation.” The district court also held that substantial
evidence supported the jury’s finding that it was objectively
12 ROOKAIRD V. BNSF RAILWAY CO.
reasonable for Rookaird to believe that the air-brake test was
required.
On appeal, BNSF argues as a matter of statutory
interpretation that paragraph (a)(2) of 49 U.S.C. § 20109
applies only to conduct that, if undertaken, would actually
violate a rule or regulation, and therefore that Rookaird did
not engage in protected activity because the test was not
legally required. BNSF effectively asks us to add the word
“actually” before “violate” in paragraph (a)(2).
We reject this interpretation of 49 U.S.C. § 20109(a)(2)
as incorrectly narrowing its intended scope. To
constructively add the word “actually” into paragraph (a)(2)
would undercut the good-faith requirement that applies
throughout subsection (a). Congress’s use of the phrase
“good faith” in subsection (a) means that it intended for
paragraph (a)(2) to extend to an employee’s good-faith
refusal to undertake conduct the employee believed to be
violative of a law, rule, or regulation, even if the conduct at
issue would not constitute an actual violation of a law, rule,
or regulation if performed or continued. See Good Faith,
Black’s Law Dictionary (10th ed. 2014) (“A state of mind
consisting in (1) honesty in belief or purpose, [or]
(2) faithfulness to one’s duty or obligation.”).
Rookaird’s case presents a good example of why this
interpretation must be correct. The jury found that Rookaird
had a good-faith belief that the air-brake test was required;
there was disagreement between Rookaird and his
supervisors as to the test’s propriety; the issue was hotly
contested through trial; and the district court only resolved
the issue after acknowledging that it was a “close call.” We
think Congress intended for Rookaird’s good-faith refusal to
be within the scope of paragraph (a)(2), notwithstanding that
the air-brake test turned out to be legally unnecessary.
ROOKAIRD V. BNSF RAILWAY CO. 13
By contrast, limiting paragraph (a)(2) to actual violations
would allow railroads to avoid liability for conduct clearly
intended be covered by paragraph (a)(2). For example, if a
railroad supervisor nefariously orders an employee to
perform an act that the supervisor is sure would violate
federal law, and the employee believes – like the supervisor
– that following the order would require the employee to
violate federal law, the railroad could fire the employee for
insubordination if the employee refused in good faith to
follow that order if it turns out that both the supervisor and
the employee were mistaken. This creates a situation in
which, because of a nuanced technicality that neither the
supervisor nor the employee knew of, the employee’s
noncompliance with the supervisor’s order would not have
been an actual violation of federal law. If paragraph (a)(2)
were construed to cover only actual violations, this
hypothetical employee would have no recourse under
paragraph (a)(2). We cannot imagine that Congress intended
for railroads to escape FRSA liability in such a situation.2
Lower courts’ interpretations of a different paragraph of
subsection (a) support our conclusion. Courts interpreting
paragraph (a)(4) of § 20109 – which prohibits retaliation
2 The dissent argues that this situation is already accounted for by
the text of the statute. Under the dissent’s reading of the statute, the
employee has recourse in such a situation because the act that the
employee undertook was “perceived by the employer” to be a refusal to
violate federal law. But this view misreads the statute. 49 U.S.C.
§ 20109(a) refers to the employee’s “lawful, good faith act done, or
perceived by the employer to have been done or about to be done.” The
phrase “perceived by the employer” gives an employee recourse whether
the employee actually engaged in the act or whether the employer merely
believes the employee engaged in the act. The phrase “perceived by the
employer” does not refer to the employer’s belief about the propriety of
the employee’s act.
14 ROOKAIRD V. BNSF RAILWAY CO.
against employees who “notify . . . the railroad carrier . . . of
a work-related personal injury” – have refused to construe
paragraph (a)(4) to require that the reported injury actually
be work-related. See Thomas v. Union Pac. R.R. Co., 203 F.
Supp. 3d 1111, 1117–18 (D. Or. 2016); Cash v. Norfolk S.
Ry. Co., No. 6:13-CV-00056, 2015 WL 178065, at *11
(W.D. Va. Jan. 14, 2015); Koziara v. BNSF Ry. Co., No. 13-
CV-834-JDP, 2015 WL 137272, at *6 (W.D. Wis. Jan. 9,
2015); Davis v. Union Pac. R.R. Co., No. 5:12-CV-2738,
2014 WL 3499228, at *6–7 (W.D. La. July 14, 2014); Ray
v. Union Pac. R.R. Co., 971 F. Supp. 2d 869, 882–84 (S.D.
Iowa 2013). Rather, those courts require only that the
employee have had, at the time of notification, a good-faith
belief that the injury was work-related: the complainant
must show that “he subjectively believed his reported injury
was work-related;” and that “his belief was objectively
reasonable.” Koziara, 2015 WL 137272, at *6. If the
employee turns out to have been mistaken (i.e., the injury
was not actually work-related), the railroad can still be liable
under paragraph (a)(4), provided that the employee’s
notification was done in good faith. See id. These courts’
refusals to add an actuality requirement to paragraph (a)(4)
in light of subsection (a)’s good-faith requirement support
our conclusion that paragraph (a)(2) should similarly not be
limited.
We are unpersuaded that the presence of the phrase
“reasonably believes” in paragraph (a)(1) and the absence of
that phrase in paragraph (a)(2) – through application of the
canon of expressio unius est exclusio alterius – require that
paragraph (a)(2) be limited to apply only to actual
violations.3 As the Supreme Court has “held repeatedly,”
3 Contrary to BNSF’s suggestions, we do not think the district court
imported the “reasonably believes” language from paragraph (a)(1) into
ROOKAIRD V. BNSF RAILWAY CO. 15
the expressio unius canon “has force only when [listed]
items . . . are members of an ‘associated group or series,’
justifying the inference that items not mentioned were
excluded by deliberate choice, not inadvertence.” Barnhart
v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting
United States v. Vonn, 535 U.S. 55, 65 (2002)); see Plata v.
Schwarzenegger, 603 F.3d 1088, 1095 (9th Cir. 2010). The
phrase “reasonably believes” in paragraph (a)(1) is not part
of an associated group or series, or a statutory listing or
grouping, and so we cannot conclude that its omission from
paragraph (a)(2) was Congress’s deliberate choice.
And even were the canon to apply, the language of
paragraph (a)(7) weighs against adding an actual-violation
requirement into paragraph (a)(2). Paragraph (a)(7) protects
employees who, in good faith, “accurately report hours on
duty.” 49 U.S.C. § 20109(a)(7) (emphasis added).
Presumably then, paragraph (a)(7) does not protect
employees who inaccurately report hours on duty, even if
such a report is made in good faith. That Congress used the
word “accurately” in paragraph (a)(7) – thereby imposing an
additional, accurateness requirement on top of the good-faith
requirement – suggests that Congress did not intend to add
an actual-violation requirement into paragraph (a)(2).
We are similarly unpersuaded by BNSF’s reference to
the Eleventh Circuit’s decision in Koch Foods, Inc. v.
Secretary, U.S. Department of Labor, 712 F.3d 476 (11th
Cir. 2013), which interpreted an anti-retaliation provision of
the Surface Transportation Assistance Act (“STAA”). The
STAA prohibits employers from retaliating against an
paragraph (a)(2); rather, the district court’s subjective-objective
instruction to the jury was about the good-faith requirement of
subsection (a).
16 ROOKAIRD V. BNSF RAILWAY CO.
employee who “refuses to operate a vehicle because . . . the
operation violates a regulation . . . related to commercial
motor vehicle safety.” 49 U.S.C. § 31105(a)(1)(B)(i). Koch
held that 49 U.S.C. § 31105(a)(1)(B)(i) requires “that an
actual violation . . . must occur as a result of the operation of
the vehicle.” 712 F.3d at 481. But the STAA’s antiretaliation
provision lacks the “good faith” requirement
present in § 20109(a)(2). Indeed, Koch relied on the fact that
the relevant portion of the STAA was “unadorned by any
reference to the employee’s belief.” 712 F.3d at 481.4
We affirm the district court’s denial of BNSF’s motion
for judgment as a matter of law on the protected-activity
element of Rookaird’s claim.
B. Contributing Factor
BNSF also appeals the district court’s grant of summary
judgment to Rookaird on the contributing-factor element of
his FRSA retaliation claim. We review de novo a district
court’s grant of summary judgment. S & H Packing & Sales
Co. v. Tanimura Distrib., Inc., 883 F.3d 797, 801 (9th Cir.
2018). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We must view the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inference in the nonmoving party’s favor. Easley v. City of
Riverside, 890 F.3d 851, 856 (9th Cir. 2018). “Where the
4 To be clear, we do not hold that whether an actual violation would
have occurred is irrelevant to a railroad’s liability under § 20109(a)(2).
Such evidence might be probative of the employee’s good faith but could
also be unfairly prejudicial or overly confusing. See Fed. R. Evid. 401–
403. We leave it to district courts to decide such evidentiary questions
in the ordinary course of trial and pretrial proceedings.
ROOKAIRD V. BNSF RAILWAY CO. 17
moving party will have the burden of proof on an issue at
trial, the movant must affirmatively demonstrate that no
reasonable trier of fact could find other than for the moving
party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007).
BNSF argues that the district court erred in granting
Rookaird summary judgment. We generally agree. The
district court conflated Rookaird’s prima facie showing,
which he successfully made as a matter of law, with his
substantive case, which should have gone to the jury.
Accordingly, we reverse the district court’s grant of
summary judgment to Rookaird on the contributing-factor
issue.
1. The FRSA
We begin by clarifying the structure of the relevant
portion of the FRSA. A claim for unlawful retaliation under
the FRSA has two stages: the prima facie stage, see
49 U.S.C. § 42121(b)(2)(B)(i)–(ii); 29 C.F.R. § 1982.104(e),
and the substantive stage, see 49 U.S.C. § 42121(b)(2)(B)(iii)–
(iv); 29 C.F.R. § 1982.109(a)–(b). Each stage has its own
burden-shifting framework.
At the prima facie stage, a complainant must make “a
prima facie showing that any [protected activity] was a
contributing factor in the unfavorable personnel action
alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(i). A
complainant’s 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);
18 ROOKAIRD V. BNSF RAILWAY CO.
[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.
29 C.F.R. § 1982.104(e)(2) (emphasis added). “Notwithstanding
a finding . . . that the complainant has made [a prima facie]
showing,” the employer can defeat a claim “if the employer
demonstrates, 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); see 29 C.F.R. § 1982.104(e)(4). In
administrative proceedings, if an FRSA complainant
prevails at the prima facie stage, then OSHA will investigate
the claim. 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R.
§ 1982.104(e)(5).
At the substantive stage, a violation will be found “only
if the complainant demonstrates that any [protected activity]
was a contributing factor in the unfavorable personnel action
alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(iii)
(emphasis added); see 29 C.F.R. § 1982.109(a). The
complainant must prove the substantive case by a
preponderance of the evidence. 29 C.F.R. § 1982.109(a).
Then – like at the prima facie stage – the employer can defeat
the retaliation claim “if the employer demonstrates by clear
ROOKAIRD V. BNSF RAILWAY CO. 19
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); see
29 C.F.R. § 1982.109(b).
These two stages are distinct. The prima facie stage is
governed by clauses (i) and (ii) of 49 U.S.C.
§ 42121(b)(2)(B) and by 29 C.F.R. § 1982.104; the
substantive stage is governed by clauses (iii) and (iv) of
49 U.S.C. § 42121(b)(2)(B) and by 29 C.F.R. §§ 1982.109,
1982.110. Although the employer has the same burden in
each stage, the complainant does not. At the prima facie
stage, the complainant need only make a prima facie
showing that the protected activity was a contributing factor
in the unfavorable personnel action, which includes as an
element that “[t]he circumstances were sufficient to raise the
inference that the protected activity (or perception thereof)
was a contributing factor in the adverse action.” 29 C.F.R.
§ 1982.104(e)(2)(iv) (emphasis added). But at the
substantive stage, the complainant must prove by a
preponderance of the evidence that the protected activity
“was a contributing factor” in the adverse action. 49 U.S.C.
§ 42121(b)(2)(B)(iii) (emphasis added); see 29 C.F.R.
§ 1982.109(a). 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.
We are not the first to point this out. In 2006, the
Administrative Review Board of the Department of Labor
similarly explained the structure of the FRSA. In Brune v.
Horizon Air Industries, Inc., ARB No. 04-037, 2006 WL
282113, at *7 (Jan. 31, 2006), the Board discussed clauses
(i) through (iv) of 49 U.S.C. § 42121(b)(2)(B). The Board
explained that clauses (i) and (ii) govern the “investigation”
stage (what we call the prima facie stage) and that clauses
20 ROOKAIRD V. BNSF RAILWAY CO.
(iii) and (iv) govern the “hearing” or “adjudication” stage
(what we call the substantive stage). Id. at *7–8. The Board
in Brune correctly noted the differing standards at each
stage:
The distinction, then, between standards
applied for purposes of investigation and
adjudication of a complaint concerns the
complainant’s burden. To secure an
investigation, a complainant merely must
raise an inference of unlawful discrimination,
i.e., establish a prima facie case. To prevail in
an adjudication, a complainant must prove
unlawful discrimination.
Id. at *8.
2. Summary Judgment of Contributing Factor
The district court erred by conflating the two stages
through which an FRSA retaliation claim proceeds, i.e.,
Rookaird’s prima facie showing with his substantive case.
In its summary-judgment order, the district court found that
Rookaird’s alleged inefficiency “cannot be unwound from”
his decision to perform the air-brake test and therefore
granted Rookaird summary judgment on “the ‘contributing
factor’ element of his prima facie case.”5 At trial, however,
the district court instructed the jury that the contributing-
5 In its summary-judgment order, the district court referenced
clauses (i) and (ii) of 49 U.S.C. § 42121(b)(2)(B), but those clauses
govern only the prima facie stage; clauses (iii) and (iv) govern the
substantive stage. Similarly, to the extent that the district court relied on
Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), that reliance was
misplaced because Kuduk involved the prima facie stage; Kuduk did not
involve the substantive stage. Id. at 789–90.
ROOKAIRD V. BNSF RAILWAY CO. 21
factor element was not in dispute, and that to prevail on the
merits, Rookaird only needed to prove that his refusal to stop
the air-brake test constituted FRSA-protected activity. Thus,
although the district court’s summary-judgment order
purported to rule only on an element of Rookaird’s prima
facie showing, the order’s effect was to grant Rookaird
summary judgment on an element of his substantive case.
This was improper. As explained, a complainant’s burden is
lower at the prima facie stage than at the substantive stage.
A complainant who prevails at the prima facie stage likely
can avoid the employer’s summary-judgment motion
because a prima facie showing includes evidence that “the
circumstances were sufficient to raise the inference that the
protected activity . . . was a contributing factor,” 29 C.F.R.
§ 1982.104(e)(2)(iv), and reasonable inferences would be
drawn in the employee’s favor on an employer’s motion for
summary judgment, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 253–54 (1986). But a successful prima facie
showing does not entitle a complainant to summary
judgment on the substantive case.
Because the district court improperly conflated
Rookaird’s prima facie showing with his substantive case,
we must determine whether Rookaird was entitled to
summary judgment on the contributing-factor element of his
prima facie showing and, if so, whether he was entitled to
summary judgment on his substantive case also.
“A ‘contributing factor’ includes ‘any factor, which
alone or in connection with other factors, tends to affect in
any way the outcome of the decision.’” Gunderson v. BNSF
Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017) (quoting Kuduk
v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014)); Allen
v. Admin. Review Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008).
“[T]he contributing factor that an employee must prove is
22 ROOKAIRD V. BNSF RAILWAY CO.
intentional retaliation prompted by the employee engaging
in protected activity.” Kuduk, 768 F.3d at 791. The
employee’s prima facie showing “does not require that the
employee conclusively demonstrate the employer’s
retaliatory motive.” Coppinger-Martin v. Solis, 627 F.3d
745, 750 (9th Cir. 2010); see also Armstrong v. BNSF Ry.
Co., 880 F.3d 377, 382 (7th Cir. 2018).
We hold that Rookaird was entitled to summary
judgment on the contributing-factor element of his prima
facie showing, but that he was not entitled to summary
judgment on his substantive case.6
a. Rookaird’s Prima Facie Showing
As to Rookaird’s prima facie showing, there was no
genuine dispute of material fact that the circumstances were
sufficient to raise the inference that the air-brake test was a
contributing factor in Rookaird’s termination. See 29 C.F.R.
§ 1982.104(e)(2)(iv). Rookaird was fired in part for being
inefficient – for taking too long, in BNSF’s view, to
complete his assigned tasks during his shift. Rookaird
performed what BNSF believed to be an unnecessary airbrake
test on that very shift. Fortt questioned the air-brake
test’s necessity in the middle of it, Rookaird’s crew said they
were going to finish it, Rookaird was relieved from duty
6 Given our clarification of the differences between the prima facie
stage and the substantive stage of an FRSA retaliation claim, it is unclear
what the benefit will be for future plaintiffs in obtaining summary
judgment of a prima facie showing, given that plaintiffs must still prove
their substantive case at trial by a preponderance of the evidence.
Nevertheless, Rookaird moved for summary judgment on his prima facie
showing, and the district court’s decision on that motion is properly
before us.
ROOKAIRD V. BNSF RAILWAY CO. 23
shortly after performing the test, and Gordon questioned him
about the test back at the Swift Depot. The close temporal
proximity of the crew being relieved to the air-brake test and
the crew’s post-relief questioning by Gordon about the test
further supports the inference that Rookaird’s firing was
motivated in part by his refusal to stop the air-brake test.
29 C.F.R. § 1982.104(e)(3). Rookaird successfully made his
prima facie showing notwithstanding BNSF’s evidence to
the contrary.7
b. Rookaird’s Substantive Case
As to Rookaird’s substantive case, however, there
remained a genuine dispute of material fact as to whether the
air-brake test was a contributing factor in Rookaird’s
termination. See 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R.
§ 1982.109(a). BNSF presented evidence that, if credited,
could lead a reasonable jury to find that Rookaird’s refusal
to stop the air-brake test did not contribute to BNSF’s
decision to terminate him. For example, Fortt and Gordon
each testified that the air-brake test did not factor into the
decision to fire Rookaird. Doug Jones, the general manager
of BNSF’s Northwest Division who made the decision to fire
Rookaird, also testified that the air-brake test did not factor
into his decision. BNSF also presented evidence that
Rookaird was fired for reasons unrelated to the air-brake test,
7 In deciding Rookaird’s motion for summary judgment, it is unclear
whether the district court considered BNSF’s evidence, including its
purportedly nonretaliatory reasons for Rookaird’s termination.
Generally, an employer’s evidence and nonretaliatory reasons should be
considered in evaluating whether an FRSA complainant has made a
prima facie showing. See Koziara v. BNSF Ry. Co., 840 F.3d 873, 879
(7th Cir. 2016) (considering employer’s evidence), cert. denied, 137 S.
Ct. 1449 (2017); Kuduk, 768 F.3d at 790 (same); Powers v. Union Pac.
R.R. Co., ARB No. 13-034, 2017 WL 262014, at *8–10 (Jan. 6, 2017).
24 ROOKAIRD V. BNSF RAILWAY CO.
including his failure to provide a signed time slip, his refusal
to leave BNSF property when instructed, and his inaccurate
reporting of his off-duty time. Viewing that evidence in the
light most favorable to BNSF, a reasonable jury could find
that Rookaird’s refusal to stop the air-brake test did not
contribute to BNSF’s decision to terminate him. Rookaird
was therefore not entitled to summary judgment on his
substantive case. The jury should have determined whether
Rookaird proved by a preponderance of the evidence that his
refusal to stop performing the air-brake test was a
contributing factor in his termination. And because no other
theory of liability can independently support the verdict, the
district court’s judgment must be vacated. See Traver v.
Meshriy, 627 F.2d 934, 938 (9th Cir. 1980).8
III. Conclusion
We affirm the district court’s denial of judgment as a
matter of law to BNSF on the protected-activity issue. We
reverse the district court’s grant of summary judgment to
Rookaird on the contributing-factor issue. Accordingly, we
vacate the district court’s judgment and remand for further
proceedings consistent with this opinion. Because
Rookaird’s cross-appeal relates entirely to damages,
Rookaird’s cross-appeal is dismissed as moot. See
McClellan v. I-Flow Corp., 776 F.3d 1035, 1041 (9th Cir.
2015).
8 BNSF argues that it is entitled to a new trial on all issues. We
express no view on whether the improper grant of summary judgment to
Rookaird on his substantive case justifies a new trial on other issues, such
as BNSF’s affirmative defense or damages. We leave it to the district
court on remand to decide whether a new trial on other issues is
warranted in light of our decision.
ROOKAIRD V. BNSF RAILWAY CO. 25
Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part,
VACATED, and REMANDED. Plaintiff-Appellant
Curtis Rookaird’s cross-appeal is DISMISSED as moot.
IKUTA, Circuit Judge, dissenting in part:
Once again, our court tries to give Congress a helping
hand by substituting its own policy judgment for the plain
language of a statute. According to the majority, Congress’s
decision to put a “reasonable belief” element into one
subsection of a statute and not into another subsection was a
mere scrivener’s error that we can and should fix judicially.
“But policy arguments cannot supersede the clear statutory
text.” Universal Health Servs., Inc. v. United States, 136 S.
Ct. 1989, 2002 (2016). Because we should apply the
statutory language as Congress enacted it, I dissent from Part
II.A of the majority opinion.
I
“Statutory interpretation begins with the plain language
of the statute. If the text of the statute is clear, this court looks
no further in determining the statute’s meaning.” K & N
Eng’g, Inc. v. Bulat, 510 F.3d 1079, 1081 (9th Cir. 2007)
(quoting United States v. Mendoza, 244 F.3d 1037, 1042 (9th
Cir. 2001) (internal citations omitted)). Here, we need look
no further than the text of the Federal Rail Safety Act
(FRSA), 49 U.S.C. § 20109(a), which states, in pertinent
part:
(a) In general.—A railroad carrier engaged in
interstate or foreign commerce, a contractor
26 ROOKAIRD V. BNSF RAILWAY CO.
or a subcontractor of such a railroad carrier,
or an officer or employee of such a railroad
carrier, may not 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
[i] lawful, [ii] good faith act [iii] done, or
perceived by the employer to have been done
or about to be done—
(1) to provide information, directly cause
information to be provided, or otherwise
directly assist in any investigation
regarding any conduct which the
employee reasonably believes constitutes
a violation of any Federal law, rule, or
regulation relating to railroad safety or
security, or gross fraud, waste, or abuse
of Federal grants or other public funds
intended to be used for railroad safety or
security, if the information or assistance
is provided to or an investigation
stemming from the provided information
is conducted by—[various agencies or
individuals];
(2) to refuse to violate or assist in the
violation of any Federal law, rule, or
regulation relating to railroad safety or
security;
(3) to file a complaint, or directly cause to
be brought a proceeding related to the
enforcement of this part or, as applicable
to railroad safety or security, chapter 51
ROOKAIRD V. BNSF RAILWAY CO. 27
or 57 of this title, or to testify in that
proceeding;
(4) to notify, or attempt to notify, the
railroad carrier or the Secretary of
Transportation of a work-related personal
injury or work-related illness of an
employee;
(5) to cooperate with a safety or security
investigation by the Secretary of
Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board;
(6) to furnish information to the Secretary
of Transportation, the Secretary of
Homeland Security, the National
Transportation Safety Board, or any
Federal, State, or local regulatory or law
enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with railroad
transportation; or
(7) to accurately report hours on duty
pursuant to chapter 211.
49 U.S.C. § 20109(a).
Under § 20109(a), an employer may not discriminate
against an employee based on an act by the employee that is:
(i) lawful; (ii) in good faith; and (iii) done or perceived by
28 ROOKAIRD V. BNSF RAILWAY CO.
the employer to have been done in order to accomplish one
of the particular actions specified in subsections (a)(1)
through (7). Subsection (a)(2) (the basis for Curtis
Rookaird’s complaint) specifies the following action: “to
refuse to violate . . . any Federal law, rule, or regulation.”
§ 20109(a)(2).
Rookaird claims he was fired in retaliation for refusing
to violate a federal rule requiring the performance of an airbrake
test. Accordingly, to prevail on his complaint,
Rookaird must show that his performance of the air-brake
test was (i) lawful, (ii) in good faith, and (iii) done (or
perceived by BNSF to have been done) to refuse to violate
federal law. See id. But Rookaird cannot satisfy the third
prong of this test. The district court determined that federal
law did not require Rookaird to perform an air-brake test on
the train, and Rookaird presented no evidence regarding
BNSF’s perception of what federal law required. Because
Rookaird did not “refuse to violate . . . any Federal law,” his
claim fails as a matter of law. See id.
II
In reaching the contrary conclusion, the majority
rewrites the statutory language. The majority asserts that
because the statute refers to an employee’s “lawful, good
faith act,” § 20109(a), employees should be able to prove
they engaged in the conduct listed in subsection (a)(2) (i.e.,
refusal “to violate . . . any Federal law”) merely by showing
they had a good faith belief that they were doing so. Maj. at
12. In effect, the majority asserts that we must read
subsection (a)(2) as referring to an employee’s “lawful, good
faith act done . . . to refuse [to take an action that in the
reasonable belief of the employee would] violate . . . any
Federal law.”
ROOKAIRD V. BNSF RAILWAY CO. 29
The majority offers many justifications for this extratextual
interpretation, but none of them have merit. First, the
majority claims that giving effect to the statute as written
would “incorrectly narrow[] its intended scope.” Maj. at 12.
According to the majority, had Congress intended the
particular conduct listed in § 20109(a)(2) to be a refusal to
“violate . . . any Federal law,” it would have inserted the
word “actually” before the word “violate.” Maj. at 12. By
failing to add the word “actually,” the majority claims,
Congress established that it did not intend to refer to an
actual violation of federal law. Maj. at 12. This is
nonsensical on its face. Congress does not have to insert the
words “actually” or “literally” or say “and we really mean
it” in order for statutory language to mean what it says.
The majority next claims that its rewriting of the statute
to insert “to take an action that in the reasonable belief of the
employee would” between “to refuse” and “to violate . . .
any Federal law” in (a)(2) must be correct for policy reasons.
Absent the added language, the majority asserts, an
employer could “nefariously order[] an employee to perform
an act” that the employer and employee both believe would
violate federal law, fire the employee for refusing to follow
the order, and then escape liability if it turns out that the act
did not violate federal law due to some technicality. Maj. at
13. But the text of the statute addresses that exact situation
without the majority’s help. Under subsection (a), FRSA is
violated if the employee takes an act that is “perceived by
the employer to have been done . . . to refuse to violate . . .
Federal law.” In the majority’s hypothetical, the employer
would be liable because, even though no actual violation
30 ROOKAIRD V. BNSF RAILWAY CO.
occurred, the railroad fired the employee for a “perceived”
refusal to violate federal law. See 49 U.S.C. § 20109(a)(2).1
Nor do the majority’s references to § 20109(a)(4) and
(a)(7) support its interjection of new language into the
statutory text. Maj. at 13–14, 15. The majority notes that
district courts have read § 20109(a)(4) (covering employees
who notify employers of work-related injuries or illnesses)
as applying regardless whether the injury or illness is workrelated.
Maj. at 13–14. But we should consider district
courts’ interpretations of statutes only to the extent they are
persuasive; district courts’ refusal to give effect to the
statutory language based on policy preferences is not.
Similarly, the fact that Congress used the word “accurately”
in § 20109(a)(7) (covering employees who “accurately
report hours on duty”), Maj. at 15, does not support (or even
logically relate to) the majority’s conclusion that it must
rewrite subsection (a)(2).
Finally, the majority’s theory that Congress’s use of the
phrase “good faith” in subsection (a) requires us to read a
“reasonable belief” element into subsection (a)(2), Maj.
at 12, is inconsistent with the statute as a whole. First,
subsection (a)(1) already includes a “reasonable belief”
element: it prohibits discrimination when an “employee’s
1 In a footnote, the majority argues that “this view misreads the
statute,” because “[t]he phrase ‘perceived by the employer’ gives an
employee recourse whether the employee actually engaged in the act or
whether the employer merely believes the employee engaged in the act.”
Maj. at 13 n.2. The majority’s reading of the statute is correct —except
that the majority misses the point that the “act” at issue is the refusal “to
violate . . . Federal law.” § 20109(a)(2). An employee has no recourse
under the statute if the employee refused to engage in a perfectly lawful
act, unless the employer believes the employee refused “to violate . . .
Federal law.” Id.
ROOKAIRD V. BNSF RAILWAY CO. 31
lawful, good faith act” was done “to provide information . . .
regarding any conduct which the employee reasonably
believes constitutes a violation.” 49 U.S.C. § 20109(a)(1)
(emphasis added). Congress’s use of “reasonably believes”
in (a)(1) but not in (a)(2) raises the presumption that
Congress did not intend to import a reasonable belief
component into the refusal “to violate . . . Federal law.”
§ 20109(a)(2). “[W]hen Congress includes particular
language in one section of a statute but omits it in another[,]
. . . this Court presumes that Congress intended a difference
in meaning.” Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767,
777 (2018) (quoting Loughrin v. United States, 134 S. Ct.
2384, 2390 (2014)).
The majority rejects this well-established principle of
interpretation on the ground that the phrase “reasonably
believes” is “not part of an associated group or series, or a
statutory listing or grouping.” Maj. at 15. This is a
misunderstanding of how the interpretive canon applies here.
Subsections (a)(1) through (a)(7) are part of an “associated
group or series” because each subsection enumerates
purposes for which an employee might undertake the
“lawful, good faith act” described in § 20109(a). See
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).
Accordingly, it is justified to infer that the exclusion of
“reasonably believes” from subsection (a)(2) but not from
subsection (a)(1) was “by deliberate choice, not
inadvertence.” Id.
Contrary to the majority, therefore, there is no basis for
concluding that Congress merely slipped up when it omitted
the “reasonable belief” element from subsection (a)(2).
Rather, recognizing the complexity of railroad regulation,
Congress could have reasonably concluded that an employer
is better positioned to know the law than the employee.
32 ROOKAIRD V. BNSF RAILWAY CO.
Therefore, Congress could have intended “to provide broader protections for employees who complain about perceived but nonexistent safety violations — as it has, for example, in Title VII and other statutes protecting employees from discrimination in the workplace — and narrower protections for employees whose refusals to” work might “significantly impede” railroad operations. See Koch Foods, Inc. v. Sec’y, U.S. Dep’t of Labor, 712 F.3d 476, 483 (11th Cir. 2013).
Conversely, because subsections (a)(1) through (a)(7) are an associated list of actions, if we are obliged to read the phrase “good faith” in the introductory section into subsection (a)(2), as the majority claims, we must also read it into subsections (a)(1) and (a)(3) to (7); there is no principled basis to do otherwise. But this would render the “reasonable belief” element in subsection (a)(1) superfluous, and courts are reluctant to adopt a reading that would “treat statutory terms as surplusage.’” Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).
In sum, there is no basis for refusing to give effect to the plain language of the statute. Because federal law did not require the performance of an air-brake test, the district court erred in concluding that Rookaird could establish that he refused “to violate . . . any Federal law,” § 20109(a)(2), and therefore erred in denying BNSF’s motion for judgment as a matter of law on the protected activity element. Accordingly, I respectfully dissent from Part II.A of the majority opinion.

Outcome: We affirm the district court’s denial of judgment as a
matter of law to BNSF on the protected-activity issue. We
reverse the district court’s grant of summary judgment to
Rookaird on the contributing-factor issue. Accordingly, we
vacate the district court’s judgment and remand for further
proceedings consistent with this opinion. Because
Rookaird’s cross-appeal relates entirely to damages,
Rookaird’s cross-appeal is dismissed as moot. See
McClellan v. I-Flow Corp., 776 F.3d 1035, 1041 (9th Cir.
2015).

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