Edward Blackorby v. BNSF Railway Company
849 F.3d 716
8th Cir.2017Background
- Edward Blackorby, a BNSF track worker, had a metal particle removed from his eye after several days of discomfort and then reported the injury to BNSF managers.
- BNSF Maintenance rule required immediate reporting of on-duty injuries; managers discouraged Blackorby from reporting and later said his report would be "late reporting."
- After Blackorby filed a formal injury report, BNSF investigated and imposed a Level S 30-day record suspension plus one-year probation (no unpaid time ultimately served). BNSF had internally stipulated that managers’ bonuses may be tied in part to employee injury rates.
- OSHA found BNSF violated the FRSA; Blackorby sought de novo review in federal court and proceeded to trial.
- At trial the district court instructed the jury that Blackorby did not need to show retaliatory motive; the jury awarded $58,280 for emotional distress. BNSF appealed the jury instruction as incompatible with Eighth Circuit precedent.
Issues
| Issue | Blackorby’s Argument | BNSF’s Argument | Held |
|---|---|---|---|
| Whether the FRSA’s "contributing factor" standard requires a showing of intentional retaliatory motive | Araujo approach: contributing factor is a low threshold and does not require proving employer motive or intent | Kuduk approach: plaintiff must show intentional retaliation prompted by the protected activity | Court held Kuduk controls: plaintiff must prove intentional retaliation prompted, at least in part, by the protected activity |
| Whether the district court’s instruction allowing recovery without proof of retaliatory motive was proper | Jury need not be told to find employer motive; contributing-factor suffices without ascribing motive | Instruction was legally erroneous under Kuduk and prejudicial | Court reversed: instruction was an abuse of discretion and did not accurately state controlling law |
| Whether the district court erred by rejecting BNSF’s proposed instruction that emotional-distress damages require competent evidence | Plaintiff argued emotional distress can be proved by plaintiff’s testimony and circumstances without expert proof | BNSF argued a limiting instruction was needed to require competent proof of genuine injury | Court found BNSF’s formulation correct as law but not required; district court did not abuse discretion in rejecting it because the proposed instruction could mislead by implying expert evidence is always required |
Key Cases Cited
- Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (holding a plaintiff must prove intentional retaliation prompted by protected activity under the FRSA)
- Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152 (3d Cir. 2013) (interpreting "contributing factor" broadly—no need to show employer motive)
- Staub v. Proctor Hosp., 562 U.S. 411 (2011) (discussing discriminatory animus and causation principles)
- Marano v. Dep’t of Justice, 2 F.3d 1137 (Fed. Cir. 1993) (interpreting contributing-factor language in the whistleblower context)
- Forshee v. Waterloo Indus., Inc., 178 F.3d 527 (8th Cir. 1999) (emotional distress damages must be supported by competent evidence)