Ludlow v. BNSF Ry. Co.

788 F.3d 794

Kirk J. LUDLOW, Plaintiff–Appellee

v.BNSF RAILWAY COMPANY, Defendant–Appellant.

No. 14–2486.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 10, 2015.

Filed: June 4, 2015.

Andrew D. Ringel, Hall & Evans, L.L.C., Denver, CO, argued (Thomas L. Beam, on the brief), for appellant.

Kyle J. Long, The Robert Pahlke Law Group, Scottsbluff, NE, argued (Robert G. Pahlke, on the brief), for appellee.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

Former Claims Representative Kirk Ludlow sued BNSF Railway for wrongful termination in violation of Nebraska public policy and whistleblower retaliation in violation of the Nebraska Fair Employment Practices Act (NFEPA), Neb.Rev.Stat. § 48–1114(3). A jury found BNSF liable on the NFEPA claim and awarded Ludlow damages. The district court¹ denied BNSF's pre- and post-verdict motions for judgment as a matter of law (JMOL) and granted Ludlow $206,514.13 in attorney's fees and $22,202.16 in nontaxable costs. On appeal, BNSF argues the district court erred in denying JMOL, in instructing the jury, and in determining the amount of attorney's fees and costs. We affirm.

I. Background

In reviewing the denial of JMOL, because sufficiency of the evidence in support of the jury's verdict is at issue, we must view all facts and resolve any conflicts in favor of Ludlow, giving him the benefit of all reasonable inferences. We will not reweigh the evidence or consider the credibility of witnesses, and we will affirm “if a reasonable jury could differ as to the conclusions that could be drawn.” Lawrence v. CNF Transp., Inc., 340 F.3d 486, 491 (8th Cir.2003) ; see Reed v. Malone's Mech., Inc., 765 F.3d 900, 913 (8th Cir.2014). The fact assertions in BNSF's briefs on appeal repeatedly ignore these well-established appellate principles.

Ludlow became a Claims Representative in BNSF's Law/Claims Department in 2000. Prior to the July 2010 termination, no disciplinary issues were recorded in his employment history transcript. In September 2009, Ludlow discovered his forged signature on documents submitted to the Department of Veterans Affairs (VA) certifying that coworker Larry Fernandes was eligible to receive VA training program benefits. Ludlow reported the forgery to his supervisor, Barry Wunker, opining that Fernandes may have been responsible. Wunker did not investigate the claimed forgery or report it to his superiors, contrary to what Ludlow believed the BNSF code of conduct required. In April 2010, Ludlow reported the forgery to the BNSF police,² notifying Wunker the following day. Wunker expressed displeasure, and at a meeting the next day told Ludlow that his immediate superior, Bill Renney, was angry that Ludlow was shedding negative light on the Claims Department. Wunker expressed concern that the forgery's disclosure could cost him his job.

Following Ludlow's report to BNSF police, Wunker began sending complaints regarding Ludlow's workplace behavior to BNSF Human Resources. Wunker told Renney that Ludlow's forgery claim was motivated by jealousy of Fernandes. Renney relayed this to his superior, Dennis Cannon, and added that Brian Williams, the investigating BNSF police officer, also viewed Ludlow as jealous—a statement Williams denied at trial. Wunker, Renney, and Cannon then drafted an e-mail ordering Ludlow to “immediately cease and desist” from independently participating in the forgery investigation and ordering him to route all future communications related to the investigation through Renney. Renney later pressured Williams to close the forgery investigation, and wrote the VA explaining that Ludlow's forgery accusation was motivated by dislike of Fernandes. Williams testified that Renney appeared to be looking for a reason to terminate Ludlow.

On May 17, 2010, Ludlow told Wunker and Renney that a VA investigator had called; Ludlow asked their permission to speak with the investigator. He was instructed to comply with the cease-and-desist order and direct future inquiries to Renney. On July 8, Williams notified Wunker, Renney, and Cannon that the VA's Office of Inspector General (OIG) intended to contact Ludlow to discuss the forgery. On July 19, Ludlow or Williams notified Renney that the OIG would meet with Ludlow the next week.

On July 13, Ludlow and Mary Adamson, a janitor, were engaged in workplace banter when Ludlow made a karate kick motion towards her, lightly striking Adamson's head and neck when he slipped. Adamson did not report the incident, which she considered accidental, but Fernandes learned of the incident from another employee and reported it to Wunker on July 16. On July 21, after learning of Ludlow's scheduled meeting with OIG, Wunker and Renney drafted an e-mail recommending that Ludlow be terminated due to the kick incident. Renney sent the e-mail to Cannon, who forwarded it to his immediate superior, Richard Lifto. Cannon acknowledged that Wunker and Renney were his sole sources of information regarding Ludlow's workplace behavior. Renney sent Lifto an e-mail describing various incidents of inappropriate workplace behavior by Ludlow that Renney or Wunker had observed. Ludlow testified that Renney's version of the incidents was either false or heavily distorted.

On July 28, Wunker, Renney, Cannon, and Lifto participated in a conference call with Charles Shewmake, BNSF's Vice President and General Counsel. The others told Shewmake that Ludlow had demonstrated a “roundhouse” kick on Adamson and gave Shewmake a report of past incidents similar to the one that Renney had e-mailed Lifto. Shewmake testified that Wunker brought up the forgery investigation during the call and accused Ludlow of “something improper involving the VA.” Shewmake testified that he based the decision to terminate Ludlow solely on the information obtained from the participants in the phone call, and claimed that Wunker's comments about the VA forgery investigation were made after Shewmake decided to terminate Ludlow. Ludlow was fired the next day.

Ludlow filed this action in state court in May 2012. BNSF timely removed. After substantial discovery, BNSF moved for summary judgment on the NFEPA-retaliation claim, arguing no protected activity, no “causal connection” between any protected activity and the termination because decision-maker Shewmake was not an unwitting “cat's paw” for unlawful retaliation by Wunker and Renney, and no evidence that BNSF's legitimate non-retaliatory reason for discharge was pretextual. The district court³ denied the motion in a lengthy July 2013 Memorandum and Order. The case was reassigned to Judge Kopf, and an eight-day trial commenced in November 2013. Judge Kopf denied BNSF's written pre-verdict motion for JMOL. See Fed.R.Civ.P. 50(a). After the jury returned its verdict for Ludlow on the NFEPA-retaliation claim, the district court denied BNSF's Rule 50(b) renewed motion for JMOL, entered judgment on the NFEPA claim, and awarded Ludlow attorney's fees and nontaxable costs. This appeal followed.

II. Sufficiency of the Evidence

On appeal, BNSF argues the district court erred in denying JMOL because Ludlow failed to present sufficient evidence for the jury to find two essential elements of an NFEPA-retaliation claim: (A) that Ludlow was engaging in protected activity when he suffered an adverse employment decision (termination); and (B) that there was a causal link between the protected activity and the adverse decision.

(A ) NFEPA prohibits retaliation against an employee because he “has opposed any practice or refused to carry out any action [by the employer that is] unlawful under the laws of the United States or this state.” Neb.Rev.Stat. § 48–1114(3). Prior to trial, BNSF moved for summary judgment on this issue, arguing that instructing employee Ludlow not to assist a VA forgery investigation that did not involve BNSF assets was not an unlawful action under Nebraska or federal law. In denying this motion, Judge Urbom explained:

In summary, Ludlow has produced evidence that BNSF used its power over him to attempt to dissuade him from assisting with a federal forgery investigation; that BNSF's conduct is of the type that is prohibited under 18 U.S.C. § 1512 and Revised Statutes of Nebraska § 28–919 ; and that Ludlow opposed BNSF's conduct by seeking his supervisor's permission to speak with investigators, and, after being told to continue to refer all investigators to Renney, scheduling an interview with Investigator Jourdan despite the “cease and desist” orders. The evidence is sufficient to establish the first element of a prima facie case under § 48–1114(3).

In its written Rule 50(a) motion, BNSF again thoroughly briefed this no-protected-activity contention. Judge Kopf again denied it. In submitting this issue to the jury, Judge Kopf instructed, without objection:

When considering both of [Ludlow's] claims, you are instructed that an individual employee has no right to communicate with criminal investigators on behalf of his employer unless authorized by his employer to do so.... On the other hand, an individual employee has a right to communicate with criminal investigators on behalf of himself alone. Thus, a direction from BNSF supervisors that Kirk Ludlow was not to communicate with criminal investigators on behalf of himself individually ... would have been unlawful. It is for you to decide the nature and extent of the instructions, if any, given to Kirk Ludlow by BNSF supervisors about communications with criminal investigators.

Following the adverse jury verdict, BNSF filed a Rule 50(b) Renewed Motion for Judgment as a Matter of Law. The Motion argued the causation element of a NFEPA claim at length but did not address the no-protected-activity issue.

On appeal, BNSF argues it was entitled to JMOL because requesting Ludlow “to cease and desist from pursuing his allegations of forgery ... as an employee of BNSF ... does not constitute an unlawful practice under the NFEPA as a matter of law.” Ludlow argues...