Michael Frost v. Bnsf Railway Company, 914 F.3d 1189

Frost, a BNSF track laborer, committed two track-fouling safety violations in 2012; after the second, BNSF discharged him (discipline hinged on the prior incident).
Frost filed an injury report (PTSD) after the first near-miss and then an OSHA complaint alleging retaliation; he later sued under the Federal Railroad Safety Act (FRSA) alleging retaliation.
At trial, BNSF presented evidence it disciplined Frost for safety violations and that decisionmakers did not rely on his protected activity. Frost presented evidence of disparate treatment (other employees not disciplined) and that his protected activity was a contributing factor.
The district court instructed the jury that BNSF could not be liable if it terminated Frost based on an “honest belief” that he violated safety rules. The jury returned a verdict for BNSF.
The Ninth Circuit reviewed whether the honest-belief instruction misstated FRSA law and whether the error was prejudicial. The court reversed and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court’s “honest belief” jury instruction correctly states FRSA law	Frost: Instruction improperly shields employer even if protected activity was a contributing factor	BNSF: Honest-belief instruction is appropriate to show legitimate nondiscriminatory reason	The instruction was legally erroneous; FRSA requires only that protected activity be a contributing factor, not exclusion by employer’s honest belief
Burden to prove discriminatory intent under FRSA	Frost: Proving protected conduct was a contributing factor satisfies intent requirement	BNSF: FRSA requires proof of employer’s discriminatory animus beyond contributing-factor proof	FRSA’s framework requires only that protected activity be a contributing factor to show retaliatory intent
Whether the honest-belief error was harmless	Frost: Error likely prejudiced jury by diverting focus from contributing-factor inquiry	BNSF: Jury likely relied on uncontroversial evidence of rule violation; verdict would stand	Error presumed prejudicial; BNSF failed to show it was more probable than not jury would reach same verdict
Whether other jury instructions cured the error	Frost: Other instructions did not eliminate shortcut created by honest-belief instruction	BNSF: Accurate instructions as a whole mitigated any prejudice	Other instructions did not rebut presumption of prejudice; new trial required

Chuman v. Wright, 76 F.3d 292 (9th Cir. 1996) (standard of review for jury instructions)
Miller v. Republic Nat’l Life Ins. Co., 789 F.2d 1336 (9th Cir. 1986) (instructions must fairly and correctly cover applicable law)
Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005) (presumption of prejudice for erroneous jury instruction; burden to show harmlessness)
Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005) (standard for showing harmless error)
Rookaird v. BNSF Ry. Co., 908 F.3d 451 (9th Cir. 2018) (FRSA uses ‘‘contributing factor’’ framework)
Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015) (subjective retaliatory animus irrelevant under contributing-factor framework)
Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) (contributing-factor standard at prima facie stage)
Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (discusses contributing-factor requirement)
Armstrong v. BNSF Ry. Co., 880 F.3d 377 (7th Cir. 2018) (approved honest-belief instruction where issue was whether protected activity occurred)
Sanderson v. Chapman, 487 F.2d 264 (9th Cir. 1973) (jury presumed to follow instructions)