Frost v. BNSF Railway Co. was decided last year by the Ninth Circuit Court of Appeals. The Court essentially held that a railway’s “honestly held belief” regarding an employee’s safety rule violation does not relieve it of liability for an alleged wrongful termination. The opinion also set forth important considerations regarding the “contributing factor” analysis, as used in unlawful discrimination/termination cases under the Federal Railroad Safety Act (FRSA). The case deserves a closer look.
The Facts of the Case
The incidents involving the case stem back to 2012. At this time, Michael Frost was working for Burlington Northern Santa Fe Railway (BNSF) as a track maintenance worker in Montana. In the spring of 2012, Mr. Frost was clearing a section of track, with crew members, when he was almost struck by an oncoming train. A BNSF supervisor apparently had released track authority without informing the crew. “Track authority” prevents trains from passing on a section of track during repairs.
Frost requested medical attention after the accident. He later reported that he suffered from post-traumatic stress disorder because of the incident. A few days after this, BNSF charged him with several rule violations, which ultimately led to his termination.
Mr. Frost then sued BNSF under the FRSA, alleging that the railway violated the statute by means of his unlawful work termination/discrimination. He argued that BNSF terminated his employment out of retaliation for his coming forward with the PTSD claim. The case was tried in the District Court for the District of Montana in 2016.
At trial, the district court instructed the jury that BNSF could not be liable if it terminated Frost due to an “honestly held belief” that he violated the company’s safety rules. The jury ultimately ruled in favor of BNSF and Frost appealed due to the “honestly held belief” instruction. The Ninth Circuit reversed the district court’s judgment.
Honest Beliefs Irrelevant
The Ninth Circuit based part of its reversal on the idea that a company’s so-called “beliefs” are irrelevant under an FRSA analysis regarding unlawful discrimination. The court agreed that such an analysis does include an examination of the employer’s intent. But plaintiffs in these types of cases show that an employer acted with a discriminatory or retaliatory intent by proving:
- They were engaged in a protected activity, and
- This activity was a contributing factor to the adverse employment decision.
The Court ruled that it is not necessary for plaintiffs to make any additional showing of discriminatory intent (i.e., that a company acted in bad faith).
Contributory Factor Analysis
Under the FRSA, a plaintiff has to show the two elements set forth above to prove discrimination. The Ninth Circuit based part of its reversal by analyzing the “contributing factor” part of this showing. According to the court, a “contributing factor” does not mean that the performance of some protected activity was the only basis for an adverse employment decision. Rather, plaintiffs only have to show that the protected activity contributed to the adverse decision in some way, even if this is in a small way.
According to the Court:
“This necessarily means it was possible for Frost to show retaliation even if BNSF had an honestly-held, justified belief that he fouled the track. 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…As Rookaird explained, ‘contributing factors’ may be quite modest – they include ‘any factor’ which tends to affect in any way the outcome of the decision.”
On reversal, the panel found that the “honest belief” instruction was therefore inconsistent with the FRSA and applicable case law. The case was remanded for a new trial.
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