BNSF Railway Track Worker Gets New Retaliation Trial

Asher TobinIn The News, Rail

BNSF Railway Track Worker Gets New Retaliation Trial

Originally Posted on Bloomberg BNA –  Jan. 30, 2019, 4:15 PM

  • District court judge failed to properly instruct jury
  • Worker alleged termination in retaliation for injury report

A former BNSF Railway Co. laborer’s claim he was fired after reporting his workplace injury is back on track.

The U.S. Court of Appeals for the Ninth Circuit Jan. 30 found Judge Donald Molloy of the U.S. District Court for the District of Montana misinformed a jury when he told them BNSF couldn’t be liable under the Federal Railroad Safety Act for the worker’s termination if it had an “honest belief” he violated company safety rules.

Martin Frost had worked at BNSF less than a year when he was nearly hit by a train near Brimstone, Mont., in April 2012 and reported the near-miss as a workplace injury, according to court records. He was suspended 30 days and placed on probation for three years for what the railroad said was a failure to follow proper safety procedures while working on the track. He later filed an Occupational Safety and Health Administration complaint alleging the discipline was retaliation for reporting the injury, as other employees present weren’t disciplined, the records said.

In November 2012, Frost was disciplined again when the railroad alleged he parked a truck on active track in Wyoming without permission. A manager recommended he be fired, but the company instead reinstated him with back pay three months later out of concern the earlier suspension wouldn’t hold up before an arbitrator.

The three months off the job left Frost behind on his mortgage and child support payments and brought him another three years of probation, according to his complaint. The complaint said he suffers from “ongoing anxiety created by frequent surveillance and hostility” and symptoms of post-traumatic stress disorder from the close call with the train.

Following the district court judge’s instructions, a jury ruled in favor of BNSF in December 2016.

But the Ninth Circuit said Frost only has to show his protected activity was a “contributing factor” in his termination, not that BNSF acted with discriminatory intent or animus. The court said BNSF failed to show the improper instruction didn’t affect the verdict. Judge Morgan Christen wrote the appeals court decision.

Paoli Law Firm P.C. and Nichols Kaster PLLP represented Frost. Hall & Evans LLC represented BNSF. The railway didn’t immediately respond to a Bloomberg Law request for comment.

Complete argument can be found at Frost v. BNSF Railway Co., 9th Cir., No. 9:15-cv-00124. 

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com