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New trial ordered for BNSF retaliation case after faulty jury instruction

Railroad worker on tracks

A federal appeals court has reinstated retaliation charges filed by a railroad worker on the basis of an incorrect jury instruction.

Michael Frost, a track laborer for Fort Worth, Texas-based BNSF, was involved in two incidents in which he was accused by the railroad with “fouling,” or approaching the track, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Michael A. Frost v. BNSF Railway Co.

In the first incident, a train traveling about 60 miles per hour narrowly missed Mr. Frost. He argued others had also been near the track but received a 30-day suspension. He later filed a retaliation complaint under the Federal Railroad Safety Act with the U.S. Occupational Safety and Health Administration.

After a second incident involving parking his truck with its back end overhanging the track, he was discharged but subsequently reinstated. He nevertheless filed suit against the railroad under the FRSA, charging retaliation in connection with the first incident.

At trial in Missoula, Montana, the judge told the jury the railroad could not be held liable under the FRSA if it concluded Mr. Frost was terminated “based on its honestly held belief that plaintiff engaged in the conduct for which he was disciplined.” The jury ruled in BNSF’s favor.

A three-judge appeals court panel unanimously held Mr. Frost was entitled to a new trial based on the judge’s jury instruction. Under the FRSA, “it was possible for Frost to show retaliation even if BNSF had an honestly-held, justified belief that he fouled the track,” said the ruling.

“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,” it said.

“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) in any way’ the decision to terminate him,” said the ruling, in quoting an earlier case and ordering a new trial.

In August, the 9th Circuit affirmed a lower court ruling that held BNSF had violated the Americans with Disabilities Act by requiring a job applicant who had had back problems to get an MRI at his own expense, in a case filed by the U.S. Equal Employment Opportunity Commission. 



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