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Federal Railroad Safety Act retaliation claim must establish intent

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Federal Railroad Safety Act retaliation claim must establish intent

A jury must determine there has been intentional retaliation for a plaintiff to prevail on a Federal Railroad Safety Act retaliation claim, says a federal appeals court ruling, in overturning a jury verdict based on incorrect jury instructions but remanding the case for a new trial.

Edward Blackorby was working on a traveling steel gang that repaired and maintained track for Fort Worth, Texas-based BNSF Railway Co. when he began to experience discomfort in his right eye, according to Monday’s ruling by the 8th U.S. District Court of Appeals in St. Louis in Edward Blackorby v. BNSF Railway Co.

Four days later, an eye doctor removed a small metallic object from the surface of Mr. Blackorby’s cornea. BNSF regulations require that injured workers immediately report a medical diagnosis of an occupational illness to a manager.

But Mr. Blackorby, who felt he was being discouraged by two supervisors from filing an injury report, filed a formal injury report six days after his injury, according to the ruling.

Shortly after, he received a letter from BNSF saying he was being investigated for filing a late report. He later received a 30-day suspension and a one-year probationary period.

He then filed suit in U.S. District Court in Kansas City, Missouri, charging the discipline violated the employee protections provision of the Federal Railroad Safety Act. 

The jury was instructed that Mr. Blackorby need not establish intentional retaliation to prevail on his claim, and it awarded him $58,280 in damages for emotional distress.

BNSF appealed, and a three-judge appeals court panel reversed the jury verdict. A jury “must find intentional retaliation prompted, at least in part, by the protected activity. The jury instruction in the present case did not require the jury to make such a ruling.”

The panel agreed, however, that Mr. Blackorby is nevertheless entitled to a new trial. “Blackorby argues that he has presented sufficient evidence of intentional retaliation” to be entitled to a new trial. “We agree,” said the ruling.

“Viewed in the light most favorable to Blackorby, the evidence shows that two BNSF managers repeatedly discouraged him from filing his injury report. 

“BNSF stipulated, moreover, that managers may earn bonuses based on the rates of employee injuries,” said the decision. This evidence raises an inference that Mr. Blackorby’s injury report was “prompted, at least in part, intentional retaliation by BNSF.”

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