Kirk Ludlow v. BNSF Railway Company
788 F.3d 794
8th Cir.2015Background
- Ludlow sued BNSF for retaliation under Nebraska law (NFEPA) and wrongful termination for public policy.
- A jury found BNSF liable on the NFEPA claim and awarded Ludlow damages; district court awarded attorney’s fees and costs.
- Ludlow reported a forged VA benefits document; supervisors allegedly retaliated by pressuring him and distorting reports.
- Ludlow’s termination followed a karate-kick incident and a cascade of communications about the forgery investigation.
- The district court denied BNSF’s JMOL motions and the jury awarded Ludlow damages; BNSF challenged JMOL, jury instructions, and attorney’s fees/costs.
- The court affirmed, addressing preservation of objections and the cat’s paw theory of liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Protected activity element under NFEPA | Ludlow engaged in protected activity by reporting forgery and cooperating with investigators | No protected activity occurred under NFEPA | Evidence supported protected activity under NFEPA |
| Causation standard for cat’s paw liability | Staub/Bennett standard applies; biased supervisors caused termination | Nebraska standard requires causal connection | Court applied Staub/Bennett cat’s paw framework to sustain liability |
| Sufficiency of causation evidence | Evidence showed decision-maker relied on biased reports | Evidence insufficient to show unlawful motive | Sufficient evidence for causal link under cat’s paw theory |
| Attorney’s fees and nontaxable costs | Fees/costs reasonable and compensable under § 48-1119(4) | Some costs/fees overstated or improperly awarded | Fees and nontaxable costs affirmed with adjustments as appropriate |
Key Cases Cited
- Staub v. Proctor Hosp., 131 S. Ct. 1186 (U.S. 2011) (cat’s paw liability framework for employer liability based on biased supervisors)
- Bennett v. Riceland Foods, Inc., 721 F.3d 546 (8th Cir. 2013) (application of Staub to Title VII-like retaliation claims)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013) (but-for causation standard for retaliation claims (Title VII))
- O’Brien v. Bellevue Pub. Sch., 856 N.W.2d 731 (Neb. 2014) (Nebraska public policy retaliation standard)
- Wolfe v. Becton Dickinson & Co., 662 N.W.2d 599 (Neb. 2003) (Nebraska interpretation of NFEPA retaliation)
- Lopez v. Tyson Foods, Inc., 690 F.3d 869 (8th Cir. 2012) (standard of causation in appeal of jury instructions)
- Grand Labs., Inc. v. Midcon Labs of Iowa, 32 F.3d 1277 (8th Cir. 1994) (controlling standard for JMOL review)
- Leftwich v. Harris-Stowe State Coll., 702 F.2d 686 (8th Cir. 1983) ( CLR costs/attorney’s fees treatment in awards)