Fresquez v. BNSF Ry. Co., 21-1118

52 F.4th 1280

Brandon FRESQUEZ, Plaintiff - Appellee,

v.BNSF RAILWAY CO., Defendant - Appellant.

No. 21-1118

United States Court of Appeals, Tenth Circuit.

FILED November 10, 2022

Bryan P. Neal, Holland & Knight LLP, Dallas, Texas (Keith M. Goman, Hall & Evans, LLC, Denver, Colorado, with him on the briefs), appearing for Appellant.

Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota (Nicholas D. Thompson, Casey Jones Law, Appleton, Wisconsin, Jonathan L. Stone, Moody Law Firm, Portsmouth, Virginia, Eleanor E. Frisch, Apollo Law LLC, Minneapolis, Minnesota, and Colin R. Reeves, Apollo Law LLC, Brooklyn, New York, with him on the brief), appearing for Appellee.

Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.

BRISCOE, Circuit Judge.

Table of Contents

Introduction ...1287

I. Factual background ...1287

II. Procedural background ...1293

III. Analysis ...1295

A. Is BNSF entitled to judgment as a matter of law on the merits of Fresquez's claims because he failed to prove that he engaged in any actionable protected activity and/or because BNSF proved its same-decision defense? ...1295

1. Standard of review ...1295

2. The evidentiary burdens in an FRSA case ...1295

3. Did Fresquez prove he engaged in actionable protected activity? ... 1296

4. BNSF's remaining arguments ...1302

5. BNSF's same-decision defense ...1307

B. Is BNSF entitled to a new trial due to the district court's admission of character evidence and/or other allegedly prejudicial evidence? ...1311

1) Standard of review ...1311

2) Procedural history of the issue ...1311

3) Analysis ...1313

C. Did the district court err in denying BNSF's combined request for a new trial on the issue of compensatory damages or, in the alternative, a remittitur of compensatory damages? ...1314

1) Standard of review ...1314

2) Procedural history of the issue ...1315

3) Analysis ...1318

D. Is BNSF entitled to judgment as a matter of law as to punitive damages? ...1318

1) Standard of review and applicable law ...1319

2) Procedural history of the issue ...1319

3) Analysis ...1320

E. Did the district court err in awarding Fresquez ten years’ worth of front pay? ...1321

1) Standard of review ...1321

2) Procedural history of the issue ...1321

3) Failure to distinguish between front pay and damages for loss of future earnings capacity ...1323

4) The amount of the front pay award ...1324

IV. Affirmance of judgment of district court ...1327

Introduction

Plaintiff Brandon Fresquez filed this action against his former employer, defendant BNSF Railway Company (BNSF), claiming that BNSF violated the Federal Railroad Safety Act (FRSA) by terminating his employment in retaliation for him engaging in certain activities that are expressly protected under the FRSA. The case proceeded to a jury trial. The jury found in favor of Fresquez on his claim of retaliation under the FRSA, and it awarded him $800,000 in compensatory damages and $250,000 in punitive damages. Following the trial, Fresquez moved for an award of back and front pay. The district court granted that motion in part and awarded Fresquez a total of $696,173 in back and front pay, bringing the total judgment to $1,746,173, plus interest from the date of entry of judgment.

BNSF now appeals. BNSF argues that it is entitled to judgment as a matter of law on the merits of Fresquez's claims, and, alternatively, judgment as a matter of law on the issue of punitive damages. BNSF further argues that it is entitled to a new trial on the merits of Fresquez's claims based on the district court's admission of character and other prejudicial evidence. BNSF also argues that it is entitled to a new trial on the issue of compensatory damages. Lastly, BNSF argues that the district court abused its discretion by awarding Fresquez ten years’ worth of front pay.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject BNSF's arguments and affirm the district court's judgment.

I. Factual background¹

BNSF is a Texas-based freight transportation company that operates an extensive interstate railroad network. BNSF is designated as a Class I freight railroad by the federal government.

Fresquez, a Colorado resident, began working for BNSF's Maintenance of Way Department in November 2005. Between 2006 and May 2016, Fresquez worked primarily as a track inspector. The track inspector position requires extensive training, including a week-long community college class, and regular certification testing.

A track inspector's job is to identify and report track defects, which are deviations from BNSF's or the Federal Railroad Administration's (FRA) track safety standards. FRA regulations set forth a specific schedule for track inspections.

49 C.F.R. § 213.233(c). Fresquez monitored and inspected the railroad tracks in his assigned geographic area, which covered in part the Denver metropolitan area, to make sure they complied with BNSF and FRA standards.

When a track inspector discovers a track defect, he or she must take one of three remedial actions, depending on the severity and classification of the defect. Some types of track defects require the inspector to take the track out of service immediately, which means that the track cannot be used until the defect is repaired. Other types of defects, in contrast, require only that the maximum speed limit be lowered on the section of track containing the defect until such time as the defect is repaired. This type of remedial action applies, in part, to what are known as class-specific defects. A section of track containing a class-specific defect may also be "reclassified to the next lowest class of track for which it does meet all of the [regulatory] requirements" and, if so, will permanently operate at a lower range of speeds unless and until the identified defect is repaired and the section of track is reclassified into a higher class. See 49 C.F.R. § 213.9(b). Lastly, defects that are characterized as non-class specific do not require any immediate remedial action, but must be repaired within thirty days. If a non-class specific defect is not repaired within thirty days, the section of track on which it is located must be taken out of service until the defect is repaired.

During the time that Fresquez worked as a track inspector for BNSF, track defects were reported by inputting information about the defect into an electronic track inspection database that BNSF maintained and referred to as the Track Inspection Management System (TIMS). More specifically, a track inspector would enter an identified defect into the TIMS system by entering the milepost location of the defect, selecting the type of defect involved, and then entering information about the type of repair that was required. Track inspectors and their supervisors accessed and worked with information in the TIMS system on a daily basis.

Fresquez, in his role as a track inspector, reported directly to a roadmaster named Michael Paz. Paz in turn reported directly to a division engineer named Mark Carpenter.

BNSF used engineering scorecards to rank its management employees, including division engineers and roadmasters. One part of the engineering scorecards focused on velocity, or the speed of trains across a manager's territory. Speed restrictions that were imposed on sections of track, such as those imposed due to the existence of track defects, could negatively affect this part of an engineering scorecard and, in turn, negatively impact a manager's ranking. Carpenter viewed the engineering scorecards as important and emphasized them to the managers who worked under him.

It is essentially undisputed that Carpenter interpreted the FRA's regulations regarding non-class specific defects in a manner that was contrary to the FRA's published compliance manual. Specifically, Carpenter took the position that tracks containing non-class specific defects could remain in service even if the defects had not been repaired within thirty days after identification. Notably, however, Carpenter never asked BNSF's in-house attorneys to assist him in interpreting the regulation, nor did Carpenter ever contact the FRA to verify if his interpretation was correct. Nevertheless, Carpenter conveyed his interpretation to all of the management employees who worked for him, including Paz.

Beginning in 2014 or 2015, Fresquez became suspicious that Carpenter and Paz were treating non-class specific defects in a manner different than required by the FRA regulations. Specifically, Fresquez began noticing isolated incidents of track defects that he knew had been identified in the field but did not appear in the TIMS system. This caused Fresquez to suspect that management employees such as Carpenter and Paz were removing identified track defects from the TIMS system.

Around this same time, Fresquez identified a defect on a petroleum track in Denver. Fresquez called Paz and asked him to come out to the location of the defect. Paz agreed with Fresquez that a defect existed and told Fresquez that he had done a good job. Paz in turn notified the employee in charge of the track that the defect needed to be repaired. Shortly thereafter, however, Paz was called to Carpenter's office. When Paz returned to the site of the defect, he told Fresquez, "I'm here to tell you from Mark Carpenter ... if that defect is in the [TIMS] system tonight, you will be wrote [sic] up for insubordination." Aplt. App., Vol. VI at 1434.

Following that incident, Carpenter decided one day to accompany Fresquez on his route in order to inspect the defects that Fresquez had identified. When Fresquez and Carpenter arrived at one of the first defects, Carpenter belittled Fresquez and told him to remove the defect from the TIMS system because Fresquez had marked it 200 feet short of the actual location. Carpenter subsequently told Fresquez to remove "a couple other defects" from the TIMS system. Id. at 1436. Although doing so violated federal law, Fresquez did as Carpenter directed because he was scared of losing his job and the medical benefits...