CURTIS ROOKAIRD, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellant. CURTIS ROOKAIRD, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee.
Nos. 16-35786, 16-35931, 16-36062, 16-35787
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 8, 2018
D.C. No. 2:14-cv-00176-RSL. Argued and Submitted May 11, 2018, Seattle, Washington.
Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Senior District Judge, Presiding
OPINION
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Tunheim; Partial Dissent by Judge Ikuta
SUMMARY**
Federal Railroad Safety Act
The panel affirmed in part, reversed in part, and vacated the district court‘s judgment, after a jury trial, in favor of the plaintiff on a claim that BNSF Railway Co. violated the antiretaliation provision of the Federal Railroad Safety Act when it fired the plaintiff for, in part, refusing to stop performing an air-brake test on a train that he was tasked with moving.
The panel affirmed the district court‘s denial of BNSF‘s motion for judgment as a matter of law with respect to whether the plaintiff engaged in FRSA protected activity. The panel concluded that there was sufficient evidence to support the jury‘s finding that the plaintiff refused, in good faith, to violate a railroad safety rule or regulation. The panel held that no actual violation of a rule or regulation was required, and substantial evidence supported the jury‘s
The panel reversed the district court‘s grant of summary judgment to the plaintiff on the contributing-factor element of his FRSA retaliation claim. The panel concluded that the plaintiff made a prima facie showing, but his substantive case should have gone to the jury because there remained a genuine dispute of material fact as to whether the air-brake test was a contributing factor in his termination.
The panel vacated the district court‘s judgment and remanded for further proceedings. It dismissed as moot the plaintiff‘s cross-appeal related to damages.
Dissenting from Part II.A of the majority opinion, Judge Ikuta wrote that the applicable provision of FRSA protects an employee who refuses to violate federal law; it does not protect an employee who refuses to take an act the employee merely thinks violates federal law.
COUNSEL
Jacqueline M. Holmes (argued), Jones Day, Washington, D.C., for Defendant-Appellant/Cross-Appellee.
Christopher William Bowman (argued), William G. Jungbauer, Yaeger & Jungbauer Barristers PLC, Saint Paul, Minnesota, for Plaintiff-Appellee/Cross-Appellant.
Nichols D. Thompson, Nichols Kaster PLLP, Minneapolis, Minnesota; Lawrence M. Mann, Bethesda, Maryland; for Amicus Curiae Academy of Rail Labor Attorneys.
TUNHEIM, Chief District Judge:
These appeals follow a civil jury trial. The jury found that BNSF Railway Company violated the anti-retaliation provision of the Federal Railroad Safety Act (“FRSA”) when BNSF fired Curtis Rookaird for, in part, refusing to stop performing an air-brake test on a 42-car train that he was tasked with moving. Rookaird was awarded over $1.2 million in damages. BNSF appeals issues related to its liability and damages; Rookaird cross-appeals issues related to damages. For the reasons below, we affirm in part, reverse in part, vacate the district court‘s judgment, and remand.
I. Background
A. Factual Background
BNSF operates a freight railroad in the western United States and Canada. It serves customers across North America, including northwest Washington known as Cherry Point. The Cherry Point rail line connects to a main line that runs from Bellingham to BNSF‘s Swift Depot. BNSF employs three-person “switcher” crews that serve BNSF customers in Cherry Point by switching or reassigning freight cars as part of delivering or picking up freight. In early 2010, BNSF relocated its switcher crews from Bellingham to the Swift Depot to reduce travel time to Cherry Point, thereby reducing the overtime BNSF had to pay those crews.
Curtis Rookaird was a conductor for – and thus in charge of - one such crew. On February 23, 2010, Rookaird and his crew worked a scheduled eight-hour shift beginning at
Three hours into their shift, the crew arrived in Custer after securing two engines in Ferndale (south of Custer). Before moving the 42-car train, Rookaird‘s crew performed a 20- to 45-minute air-brake test on the train. During the test, Fortt said on the radio to Rookaird and his crew, “I‘m not from around here, and I don‘t know how you guys do anything. But from where I‘m from, we don‘t have to air test the cars.” Fortt did not tell the crew to stop. Rookaird‘s crew replied that they were going to finish the test. They did, and then began moving the 42-car train.
About ninety minutes later, around five hours into their shift, Rookaird‘s crew had not yet completed moving the 42-car train in Custer and had not yet serviced any Cherry Point customers. Fortt and Stuart Gordon, another one of Rookaird‘s supervisors on duty that day, were frustrated with what they believed to be a slow pace of work by Rookaird‘s crew. Fortt ordered Rookaird‘s crew to stop work and report back to the Swift Depot because another crew was going to relieve them. Gordon believed that Rookaird was intentionally slowing down work as a way to get back at BNSF for reducing overtime hours.
Back at the Swift Depot, around 7:50 p.m., Gordon questioned Rookaird about the air-brake test. Gordon told Rookaird that he thought the test was unnecessary. Gordon also asked Rookaird if he would be happy with the level of service he received that day if he were a BNSF customer; Rookaird told him no. Gordon then told Rookaird and his crew that they were done for the day and to clock out and go home. Rookaird printed his timesheet at 8:02 p.m., reporting
BNSF initiated an investigation into Rookaird to determine whether any disciplinary action was warranted. On March 19, BNSF fired Rookaird for his “failure to work efficiently ... on February 23,” his “dishonesty when reporting [his] off duty time,” his failure to sign his timesheet, and his “failure to comply with instructions when instructed to leave the property ... on February 23.”
B. The FRSA
The FRSA prohibits railroad operators from retaliating against employees who refuse in good faith to violate railroad safety laws or regulations. The FRSA provides:
A railroad carrier ... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee‘s lawful, good faith ... refus[al] to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety ....
An employee who alleges an FRSA anti-retaliation violation may file a complaint with the Secretary of Labor.
C. District Court Proceedings
Rookaird brought this action pursuant to
The district court held that Rookaird was required to prove four elements by a preponderance of the evidence: “that (1) he engaged in a protected activity; (2) the employer
The issues for the jury were whether Rookaird‘s refusal to stop the air-brake test was FRSA-protected activity, BNSF‘s affirmative defense, and damages. Before closing arguments, the district court concluded that – although Rookaird‘s crew was not legally required to perform the air-brake test under the circumstances, describing the issue as a “close call” – a reasonable jury could find that Rookaird engaged in protected activity because there was evidence that Rookaird “had a subjectively and objectively reasonable good faith belief that the air-brake test was required.”1 The jury returned a verdict for Rookaird, finding that Rookaird‘s refusal was FRSA-protected activity. The Court awarded Rookaird $1.2 million in damages and entered final judgment.
These appeals followed.
A. Protected Activity
BNSF appeals the district court‘s denial of BNSF‘s motion for judgment as a matter of law that Rookaird did not engage in protected activity. We review de novo a district court‘s denial of a motion for judgment as a matter of law. First Nat‘l Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058, 1067 (9th Cir. 2011). Judgment as a matter of law is proper only when “the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury‘s verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). “The verdict will be upheld if it is supported by substantial evidence, ‘even if it is also possible to draw a contrary conclusion.’” First Nat‘l Mortg. Co., 631 F.3d at 1067 (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)).
BNSF argues that Rookaird did not engage in protected activity as a matter of law for two reasons. First, BNSF insists there was insufficient evidence from which the jury could have found that Rookaird “refused” to violate a railroad safety rule or regulation because he was never explicitly ordered to stop the air-brake test. Second, BNSF argues that
We hold that the district court did not err in denying BNSF‘s motion for judgment as a matter of law with respect to whether Rookaird engaged in FRSA-protected activity.
Under the FRSA, protected activity includes an “employee‘s lawful, good faith ... refus[al] to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.”
BNSF maintains that Fortt‘s questioning of the air-brake test‘s necessity constituted insufficient evidence that Rookaird ‘refused’ to violate a railroad safety rule or regulation because it is undisputed that Fortt never explicitly directed Rookaird to stop the test. But an employee‘s refusal need not be precipitated by an explicit directive in order for the employee‘s refusal to be FRSA-protected activity. The word “refuse” in the FRSA is a clear reference to the employee‘s conduct, not the employer‘s. And while certainly an explicit order can be ‘refused,’ statements or conduct of the employer can amount to an implicit order, and
Here, there was sufficient evidence to support the jury‘s finding that Rookaird refused, in good faith, to violate a railroad safety rule or regulation. Fortt‘s statements questioning the need for the air-brake test came in the middle of the test. Rookaird responded that the crew was going to finish the test, and they did so. Fortt was Rookaird‘s supervisor. And the substance of Fortt‘s statements – “I‘m not from around here,” “I don‘t know how you guys do anything,” and “from where I‘m from, we don‘t have to air test the cars” – are exactly the kind of statements, taken in context, that a reasonable jury could have found sufficient to prompt Rookaird to ‘refuse’ to stop the test.
2. Actual Violation
The parties vigorously disputed before the district court whether Rookaird was legally required to perform the air-brake test under the circumstances. The district court ultimately concluded that he was not but described the issue as a “close call.” The district court went on to hold that the good-faith requirement in subsection (a) of
On appeal, BNSF argues as a matter of statutory interpretation that paragraph (a)(2) of
We reject this interpretation of
Rookaird‘s case presents a good example of why this interpretation must be correct. The jury found that Rookaird had a good-faith belief that the air-brake test was required; there was disagreement between Rookaird and his supervisors as to the test‘s propriety; the issue was hotly contested through trial; and the district court only resolved the issue after acknowledging that it was a “close call.” We think Congress intended for Rookaird‘s good-faith refusal to be within the scope of paragraph (a)(2), notwithstanding that the air-brake test turned out to be legally unnecessary.
Lower courts’ interpretations of a different paragraph of subsection (a) support our conclusion. Courts interpreting paragraph (a)(4) of
We are unpersuaded that the presence of the phrase “reasonably believes” in paragraph (a)(1) and the absence of that phrase in paragraph (a)(2) – through application of the canon of expressio unius est exclusio alterius – require that paragraph (a)(2) be limited to apply only to actual violations.3 As the Supreme Court has “held repeatedly,”
And even were the canon to apply, the language of paragraph (a)(7) weighs against adding an actual-violation requirement into paragraph (a)(2). Paragraph (a)(7) protects employees who, in good faith, “accurately report hours on duty.”
We are similarly unpersuaded by BNSF‘s reference to the Eleventh Circuit‘s decision in Koch Foods, Inc. v. Secretary, U.S. Department of Labor, 712 F.3d 476 (11th Cir. 2013), which interpreted an anti-retaliation provision of the Surface Transportation Assistance Act (“STAA”). The STAA prohibits employers from retaliating against an
We affirm the district court‘s denial of BNSF‘s motion for judgment as a matter of law on the protected-activity element of Rookaird‘s claim.
B. Contributing Factor
BNSF also appeals the district court‘s grant of summary judgment to Rookaird on the contributing-factor element of his FRSA retaliation claim. We review de novo a district court‘s grant of summary judgment. S & H Packing & Sales Co. v. Tanimura Distrib., Inc., 883 F.3d 797, 801 (9th Cir. 2018). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
BNSF argues that the district court erred in granting Rookaird summary judgment. We generally agree. The district court conflated Rookaird‘s prima facie showing, which he successfully made as a matter of law, with his substantive case, which should have gone to the jury. Accordingly, we reverse the district court‘s grant of summary judgment to Rookaird on the contributing-factor issue.
1. The FRSA
We begin by clarifying the structure of the relevant portion of the FRSA. A claim for unlawful retaliation under the FRSA has two stages: the prima facie stage, see
At the prima facie stage, a complainant must make “a prima facie showing that any [protected activity] was a contributing factor in the unfavorable personnel action alleged in the complaint.”
- The employee engaged in a protected activity (or ... was perceived to have engaged or to be about to engage in protected activity);
The respondent knew or suspected that the employee engaged in the protected activity (or perceived the employee to have engaged or to be about to engage in protected activity); - The employee suffered an adverse action; and
- The circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.
At the substantive stage, a violation will be found “only if the complainant demonstrates that any [protected activity] was a contributing factor in the unfavorable personnel action alleged in the complaint.”
These two stages are distinct. The prima facie stage is governed by clauses (i) and (ii) of
We are not the first to point this out. In 2006, the Administrative Review Board of the Department of Labor similarly explained the structure of the FRSA. In Brune v. Horizon Air Industries, Inc., ARB No. 04-037, 2006 WL 282113, at *7 (Jan. 31, 2006), the Board discussed clauses (i) through (iv) of
The distinction, then, between standards applied for purposes of investigation and adjudication of a complaint concerns the complainant‘s burden. To secure an investigation, a complainant merely must raise an inference of unlawful discrimination, i.e., establish a prima facie case. To prevail in an adjudication, a complainant must prove unlawful discrimination.
Id. at *8.
2. Summary Judgment of Contributing Factor
The district court erred by conflating the two stages through which an FRSA retaliation claim proceeds, i.e., Rookaird‘s prima facie showing with his substantive case. In its summary-judgment order, the district court found that Rookaird‘s alleged inefficiency “cannot be unwound from” his decision to perform the air-brake test and therefore granted Rookaird summary judgment on “the ‘contributing factor’ element of his prima facie case.”5 At trial, however, the district court instructed the jury that the contributing-
Because the district court improperly conflated Rookaird‘s prima facie showing with his substantive case, we must determine whether Rookaird was entitled to summary judgment on the contributing-factor element of his prima facie showing and, if so, whether he was entitled to summary judgment on his substantive case also.
“A ‘contributing factor’ includes ‘any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.‘” Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017) (quoting Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014)); Allen v. Admin. Review Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008). “[T]he contributing factor that an employee must prove is
We hold that Rookaird was entitled to summary judgment on the contributing-factor element of his prima facie showing, but that he was not entitled to summary judgment on his substantive case.6
a. Rookaird‘s Prima Facie Showing
As to Rookaird‘s prima facie showing, there was no genuine dispute of material fact that the circumstances were sufficient to raise the inference that the air-brake test was a contributing factor in Rookaird‘s termination. See
b. Rookaird‘s Substantive Case
As to Rookaird‘s substantive case, however, there remained a genuine dispute of material fact as to whether the air-brake test was a contributing factor in Rookaird‘s termination. See
III. Conclusion
We affirm the district court‘s denial of judgment as a matter of law to BNSF on the protected-activity issue. We reverse the district court‘s grant of summary judgment to Rookaird on the contributing-factor issue. Accordingly, we vacate the district court‘s judgment and remand for further proceedings consistent with this opinion. Because Rookaird‘s cross-appeal relates entirely to damages, Rookaird‘s cross-appeal is dismissed as moot. See McClellan v. I-Flow Corp., 776 F.3d 1035, 1041 (9th Cir. 2015).
AFFIRMED in part, REVERSED in part, VACATED, and REMANDED. Plaintiff-Appellant Curtis Rookaird‘s cross-appeal is DISMISSED as moot.
IKUTA, Circuit Judge, dissenting in part:
Once again, our court tries to give Congress a helping hand by substituting its own policy judgment for the plain language of a statute. According to the majority, Congress‘s decision to put a “reasonable belief” element into one subsection of a statute and not into another subsection was a mere scrivener‘s error that we can and should fix judicially. “But policy arguments cannot supersede the clear statutory text.” Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2002 (2016). Because we should apply the statutory language as Congress enacted it, I dissent from Part II.A of the majority opinion.
I
“Statutory interpretation begins with the plain language of the statute. If the text of the statute is clear, this court looks no further in determining the statute‘s meaning.” K & N Eng‘g, Inc. v. Bulat, 510 F.3d 1079, 1081 (9th Cir. 2007) (quoting United States v. Mendoza, 244 F.3d 1037, 1042 (9th Cir. 2001) (internal citations omitted)). Here, we need look no further than the text of the Federal Rail Safety Act (FRSA),
(a) In general. — A railroad carrier engaged in interstate or foreign commerce, a contractor
or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee‘s [i] lawful, [ii] good faith act [iii] done, or perceived by the employer to have been done or about to be done —
- to provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security, if the information or assistance is provided to or an investigation stemming from the provided information is conducted by — [various agencies or individuals];
- to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security;
- to file a complaint, or directly cause to be brought a proceeding related to the enforcement of this part or, as applicable to railroad safety or security, chapter 51
or 57 of this title, or to testify in that proceeding; - to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;
- to cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;
- to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation; or
- to accurately report hours on duty pursuant to chapter 211.
49 U.S.C. § 20109(a) .
Under
Rookaird claims he was fired in retaliation for refusing to violate a federal rule requiring the performance of an air-brake test. Accordingly, to prevail on his complaint, Rookaird must show that his performance of the air-brake test was (i) lawful, (ii) in good faith, and (iii) done (or perceived by BNSF to have been done) to refuse to violate federal law. See
II
In reaching the contrary conclusion, the majority rewrites the statutory language. The majority asserts that because the statute refers to an employee‘s “lawful, good faith act,”
The majority next claims that its rewriting of the statute to insert “to take an action that in the reasonable belief of the employee would” between “to refuse” and “to violate any Federal law” in (a)(2) must be correct for policy reasons. Absent the added language, the majority asserts, an employer could “nefariously order[] an employee to perform an act” that the employer and employee both believe would violate federal law, fire the employee for refusing to follow the order, and then escape liability if it turns out that the act did not violate federal law due to some technicality. Maj. at 13. But the text of the statute addresses that exact situation without the majority‘s help. Under subsection (a), FRSA is violated if the employee takes an act that is “perceived by the employer to have been done . . . to refuse to violate Federal law.” In the majority‘s hypothetical, the employer would be liable because, even though no actual violation
Nor do the majority‘s references to
Finally, the majority‘s theory that Congress‘s use of the phrase “good faith” in subsection (a) requires us to read a “reasonable belief” element into subsection (a)(2), Maj. at 12, is inconsistent with the statute as a whole. First, subsection (a)(1) already includes a “reasonable belief” element: it prohibits discrimination when an “employee‘s
The majority rejects this well-established principle of interpretation on the ground that the phrase “reasonably believes” is “not part of an associated group or series, or a statutory listing or grouping.” Maj. at 15. This is a misunderstanding of how the interpretive canon applies here. Subsections (a)(1) through (a)(7) are part of an “associated group or series” because each subsection enumerates purposes for which an employee might undertake the “lawful, good faith act” described in
Contrary to the majority, therefore, there is no basis for concluding that Congress merely slipped up when it omitted the “reasonable belief” element from subsection (a)(2). Rather, recognizing the complexity of railroad regulation, Congress could have reasonably concluded that an employer is better positioned to know the law than the employee.
Conversely, because subsections (a)(1) through (a)(7) are an associated list of actions, if we are obliged to read the phrase “good faith” in the introductory section into subsection (a)(2), as the majority claims, we must also read it into subsections (a)(1) and (a)(3) to (7); there is no principled basis to do otherwise. But this would render the “reasonable belief” element in subsection (a)(1) superfluous, and courts are reluctant to adopt a reading that would “treat statutory terms as surplusage.” Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).
In sum, there is no basis for refusing to give effect to the plain language of the statute. Because federal law did not require the performance of an air-brake test, the district court erred in concluding that Rookaird could establish that he refused “to violate . . . any Federal law,”