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Blackorby v. BNSF Railway Co.

United States Court of Appeals, Eighth Circuit

August 23, 2019

Edward Blackorby Plaintiff - Appellant
v.
BNSF Railway Company Defendant-Appellee

          Submitted: April 17, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

          MELLOY, CIRCUIT JUDGE.

         Plaintiff Edward Blackorby appeals following an adverse jury verdict on his retaliation claims under the Federal Railroad Safety Act. 49 U.S.C. § 20109 ("FRSA"). He challenges the jury instructions in several respects. We agree with his argument that the instructions misstated the "honestly held belief" defense in the context of the FRSA's contributing-factor standard and misallocated and misstated the burden of proof. Pursuant to our precedent applying the FRSA (including the prior appeal in this case), the plaintiff bears the burden of proving that intentional retaliation in response to protected conduct served as a contributing factor in an adverse employment action. By express statutory command, the defendant then bears the burden of proving an affirmative defense-that the defendant would have taken the same action in the absence of protected conduct-by clear and convincing evidence. 49 U.S.C. § 42121(b)(2)(B)(iv). The "honestly held belief" instruction, as given in this case, stated BNSF was excused from liability if it honestly believed Blackorby had engaged in employee wrongdoing. This instruction, however, did not reference the contributing-factor standard. Moreover, the instructions as a whole expressly incorporated this defense into the plaintiff's case, failing to allocate the burden of proof to BNSF and failing to identify that burden of proof as clear and convincing evidence. Because this composite error was prejudicial, we reverse.

         I. Background

         Blackorby suffered an eye injury while at work. The day of his injury was windy and dusty. He reported to a union foreman that he had gotten something in his eye. The foreman recommended saline eye drops, which provided partial relief. In fact, a small metal shard had entered his eye. The existence and severity of the eye injury was not immediately apparent, and Blackorby did not immediately report the incident to his employer, BNSF, through any official channels. Several days later his eye swelled substantially, and he went to an eye doctor. The eye doctor discovered and removed the shard.

         That same day, Blackorby reported the matter to a BNSF manager, Douglas Turney, and told the manager he had a follow-up appointment the next day. Turney passed that information along to another manager, James Sadler, who asked to accompany Blackorby to his appointment. Blackorby checked with his union representative who said Sadler could accompany Blackorby but not enter the examining room or ask to see Blackorby's records. Blackorby consented to allow Sadler to accompany him but felt uncomfortable with the situation. At the follow-up appointment, the doctor told Blackorby his eye would be okay and prescribed an antibiotic.

         In the doctor's lobby, Sadler asked Blackorby if he wanted to formally report the injury. According to Blackorby, Sadler was "adamant" that Blackorby not report the injury and suggested Blackorby could say the injury happened at home. Blackorby was upset with Sadler's suggestions, called Turney, and stated he was unwilling to lie and intended to report the injury. The next day at work, he formally reported the injury.

         Two days later, Blackorby received notice that he was under investigation for violating a company rule that mandated work-related injuries be reported "immediately" to the "proper manager." BNSF Maintenance of Way Operating Rule 1.2.5. BNSF provided a hearing, determined Blackorby had violated the rule, and imposed a 30-day record suspension and one-year probationary period.[1] Blackorby filed a complaint with OSHA, whose Regional Administrator determined BNSF had violated Blackorby's rights. While an appeal from that administrative ruling was pending, Blackorby filed the present action.

         At a first trial, the jury returned a verdict for Blackorby, awarding him compensatory damages. On appeal from that judgment, we reversed. See Blackorby v. BNSF Ry. Co., 849 F.3d 716, 723 (8th Cir. 2017) ("Blackorby I"). We held the jury instructions at the first trial were flawed in that they stated expressly that the plaintiff need not show the defendant acted with a retaliatory animus. Id. at 722. Relying upon Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), we held that a FRSA retaliation claim requires the plaintiff to prove that the employer acted with intentional retaliatory animus. Blackorby I, 849 F.3d at 722.

         On remand, the parties conducted a second jury trial as to liability only.[2] The parties vigorously contested the jury instructions on remand. Arguments on appeal center on four of the instructions, Instructions 16-19, which the district court used over Blackorby's objections. We quote and discuss those four instructions below. The jury returned a verdict for BNSF, holding Blackorby did not prove his prima facie case. Blackorby appeals.

II. Discussion
We review a district court's jury instructions for an abuse of discretion. A district court possesses broad discretion in instructing the jury, and jury instructions do not need to be technically perfect or even a model of clarity. But the jury instructions, taken as a whole, must fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case. Even if we find that a district court ...

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