Parker v. BNSF Ry. Co.

112 F.4th 687

Paul W. PARKER, as Personal Representative of the Estate of Curtis John Rookaird, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee.

No. 22-35695

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 13, 2023 Seattle, Washington

Filed August 9, 2024

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding, D.C. No. 2:14-cv-00176-RAJ

Cyle A. Cramer (argued), William G. Jungbauer, and John D. Magnuson, Yaeger & Jungbauer Barristers PLC, Saint Paul, Minnesota; for Plaintiff-Appellant.

David M. Morrell (argued) and Jacqueline M. Holmes, Jones Day, Washington, D.C.; Shelby B. Smith, Jones Day, Pittsburgh, Pennsylvania; Tim D. Wackerbarth, Callie A. Castillo, and Andrew G. Yates, Lane Powell PC, Seattle, Washington; for Defendant-Appellee.

Before: Susan P. Graber, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge Graber.

OPINION

GOULD, Circuit Judge:

Curtis Rookaird, through his estate representative Paul Parker, challenges his termination from BNSF Railway Company (BNSF) under the anti-retaliation provision of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109(d). After a jury found in Rookaird's favor, the Ninth Circuit vacated the verdict and remanded the case to the district court to reconsider its partial summary judgment for Rookaird on the issue of whether his performing an air-brake test had contributed to BNSF's decision to discharge him. Rookaird v. BNSF Ry. Co., 908 F.3d 451, 463 (9th Cir. 2018) (Rookaird I). On remand, the district court conducted a bench trial on the issue and decided in BNSF's favor. The district court found that BNSF had conceded that Rookaird's refusal to stop performing the air-brake test contributed to its decision to discharge Rookaird, but the court nonetheless concluded that BNSF was entitled to an affirmative defense by showing that the air-brake test "contributed very little" to BNSF's decision. Rookaird appeals, contending that the district court erred in its analysis of BNSF's affirmative defense and in certain evidentiary rulings.

We conclude that the district court's application of the FRSA does not comply with the text of the statute, which prohibits the discriminatory discharge of an employee due even "in part" to the employee's refusal to violate or assist in violating a railroad safety law, rule, or regulation. 49 U.S.C. § 20109(a)(2). Nor is the district court's conclusion consistent with relevant case law, including our reasoning in a prior case that, under the burden-shifting framework required for FRSA cases, "[a plaintiff] would be entitled to relief even if [the protected activity] played only a very small role in [the employer's] decision-making process." Frost v. BNSF Ry. Co., 914 F.3d 1189, 1197 (9th Cir. 2019) (citing Rookaird I, 908 F.3d at 461). BNSF needed to demonstrate by clear and convincing evidence not merely that it could have fired Rookaird absent his engaging in the protected activity, but rather that BNSF would have fired Rookaird. 49 U.S.C. § 42121(b)(2)(B)(ii); 29 C.F.R. § 1982.104(e)(4); see Brousil v. U.S. Dep't of Labor, Admin. Review Board, 43 F.4th 808, 812 (7th Cir. 2022) (citing Speegle v. Stone & Webster Constr., Inc., ARB No. 13-074, 2014 WL 1870933, at *7 (Dep't of Labor Admin. Review Bd. Apr. 25, 2014)). An FRSA affirmative defense is a "steep burden," see Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 162 (3d Cir. 2013), particularly when a district court finds that an employer concedes that the protected activity contributed to the decision to terminate the employee who engaged in it.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's evidentiary rulings, and we vacate and remand the affirmative defense issue for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

A. Rookaird's Tenure at BNSF

1. On and Before February 23, 2010

Curtis Rookaird began working for BNSF, a national freight train operator, in 2004. Before February 23, 2010, Rookaird did not have a disciplinary record. He began his shift at 2:30 p.m. on February 23, 2010, working on a three-person "switcher" crew at BNSF's Swift depot with engineer Peter Belanger and brakeman Matthew Webb. Rookaird, as a conductor, was in charge of the crew. The crew was supposed to take a van from Swift to Ferndale, and then take train cars back to Custer, where his crew would move 42 railway cars onto storage tracks. The crew was then expected to take a van to Cherry Point to service BNSF customers. The crew initially encountered an approximately two-hour delay while waiting for the paperwork they needed to start the day. At Custer, before moving the cars to storage, Rookaird and his crew performed an air-brake safety test. This test took around twenty to forty minutes to complete.

Rookaird and his crew performed this air-brake test in accordance with the company's standard operating procedures and recent changes to local processes. BNSF train crews nationwide perform routine air-brake tests—sometimes called "air tests"—on a daily basis. Air-brake tests typically take twenty to twenty-five minutes to complete. BNSF had started conducting remote audits to ensure that employees were performing air-brake tests. On February 11, weeks before Rookaird was at Custer with his crew, BNSF implemented a new plan to manage the railway in the Cherry Point area more efficiently by moving the starting point for its switcher crews from Bellingham to Swift. The new plan decreased employees' hours, but did not propose reducing or eliminating air-brake tests to gain efficiency.

BNSF, however, encountered less efficient operations that month while implementing the new plan, with train cars often sitting idle for longer than usual. BNSF Assistant Superintendent Stuart Gordon testified during the bench trial that complications were happening at that time, resulting in delays. Trainmaster Dan Fortt, who reported to Gordon, testified that BNSF was then "days behind" on their service commitments, calling the place an "operational nightmare." Nonetheless, the BNSF company rules stated that, if an employee was in doubt about whether to perform an air-brake test, he should "take the safe course."

Fortt, headquartered in Canada and then serving BNSF as a front-line supervisor, radioed Rookaird's crew on February 23 while they were conducting the air-brake test. He asked them why they were doing it. Fortt commented: "I'm not from around here, and I don't know how you guys do anything. But where I'm from, we don't have to air test the cars." Fortt had the authority to instruct the crew more explicitly to stop the air-brake test, but he did not do so. The crew completed the test.

Gordon, who supervised Fortt, had told Fortt to question Rookaird about why the crew was performing an air-brake test. Gordon objected that Rookaird's crew's performance of the test was unnecessary. Gordon concluded that the crew was inefficient that day because performing the air-brake test had delayed the operation. When later asked during his testimony which part of the job the crew was not doing efficiently, Gordon urged: "An air test, I'm telling you." When asked for any other basis for the crew's inefficiency, Gordon did not mention any other specifics.

Rookaird's crew started moving the cars into storage. The crew got another call from Fortt, this time asking how much longer they would take to finish storing the cars. It was around 7:30 p.m., and Rookaird estimated they would take another hour or two. At Gordon's direction, Fortt told Rookaird's crew to pack up and report back to the Swift depot because another crew was going to finish the job. Gordon called Rookaird's crew back in part to question them as to why they performed the air-brake test. Fortt agreed that Rookaird's crew was taking too long to do their job. Fortt also thought that the air-brake test was unnecessary and "contributing" to slowing the process down. Fortt was not aware of any other reasons for the crew's delay.

Back at the Swift depot, Gordon told Rookaird and the crew to "tie up." Gordon claimed that he did not then plan to pursue disciplinary action against Rookaird or the crew. Rookaird completed his tie-up timeslip at 8:02 p.m. but did not sign it. Rookaird went to the breakroom, where he had a heated exchange with another employee, Ron Krich. Gordon believed he overheard Rookaird encouraging Krich to "slow down," suggesting an intentional effort to log more hours and earn overtime pay, though ultimately no one testified to having heard Rookaird use those exact words. Gordon came over and told Rookaird to leave. When Rookaird did not leave, Gordon again told Rookaird to go home. Rookaird then left. Rookaird reported that his final off-duty time for that day was 8:30 p.m., within the thirty-minute grace period permitted by BNSF's policies and practices.

Gordon immediately conferred with Fortt and then referred Rookaird's crew for discipline in an e-mail to Gordon's immediate supervisor, Jeff Beck, as well as to the General Manager of the Northwest Division, Doug Jones, and investigating officer Robert Johnson. Gordon testified that he told these individuals that Rookaird's crew did an air-brake test that day "that wasn't necessary."

2. The Investigation & Rookaird's Termination

On February 26, 2010, BNSF sent Rookaird a letter alerting him that BNSF was investigating his actions on February 23, 2010. The letter informed Rookaird that BNSF was investigating him for: (1) failure to work efficiently, (2) dishonesty in reporting his off-duty time, (3) failure to provide a signed tie-up timeslip, and (4) failure to comply with instructions when specifically told to leave the property. BNSF justified its discipline based on its Policy for Employee Performance and Accountability (PEPA). The PEPA...