BNSF wins reversal of adverse $1.3 million judgment

Client(s) BNSF Railway Company

Jones Day successfully represented BNSF Railway Company on appeal from a grant of partial summary judgment to a former employee on his claim under the Federal Railroad Safety Act ("FRSA"). Before trial, the district court had held that the former employee, Curtis Rookaird, met his burden to prove as a matter of law that his performance of an unnecessary brake test (which Rookaird styled as a refusal to violate safety regulations) was a contributing factor in BNSF's later decision to dismiss him for, among other things, participating in a work slowdown. BNSF's managers had testified that the brake test did not play any role in Rookaird's discipline, but the district court ignored this testimony.

The case proceeded to trial on the questions of (1) whether Rookaird had engaged in protected activity when he performed the brake test and (2) whether BNSF had proven its affirmative defense that it would have dismissed Rookaird absent any protected activity. The jury returned a verdict in Rookaird's favor, and BNSF appealed the resulting $1.3 million judgment on several grounds.

The Ninth Circuit reviewed the case and concluded that the district court erred when it granted summary judgment to Rookaird on the contributing factor element of his case. Specifically, the court held that a reasonable jury could have credited the testimony of BNSF's managers and found that Rookaird's performance of the brake test did not contribute to the decision to dismiss him. Importantly, the court acknowledged that FRSA plaintiffs have the burden to prove that their employers engaged in "intentional retaliation prompted by . . . protected activity." The district court's decision, which relied on his conclusion that Rookaird's inefficiency could not "be unwound from" his brake test, failed appropriately to apply this standard.

Because it was for a jury to determine whether Rookaird met his burden to prove contributing factor causation, the Ninth Circuit reversed the district court's grant of partial summary judgment, vacated the judgment against BNSF, and remanded the case for further proceedings.

Rookaird v. BNSF Railway Company, Nos. 16-35786, -35787, -35931, -36062 (9th Cir.)