By: Dan Mohan

On January 18, 2018, the Seventh Circuit Court of Appeals affirmed the defense verdict DMG partner Dan Mohan obtained in the first ever Federal Railroad Safety Act (“FRSA”) whistleblower case tried to a jury in the Northern District of Illinois.  Armstrong v. BNSF, 880 F.3d 377 (7th Cir. 2018).  FRSA’s whistleblower provisions make it illegal for railroad carriers to terminate or otherwise discriminate against an employee as a result of the employee’s lawful good faith act done to notify, or attempt to notify, the railroad carrier of a work-related personal injury, or for reporting, in good faith, a hazardous safety or security condition.  See 49 U.S.C. § 20109(a)(4), and (b)(1)(A).

In affirming the DMG verdict, the Seventh Circuit approved a crucial jury instruction establishing that a railroad is not liable if it acts on an honest belief that the plaintiff did not engage in good faith protected activity, or if plaintiff otherwise fails to prove that the railroad was motivated at least in some part by the desire to retaliate against the plaintiff. For good measure, that court also held that a trial court may properly award litigation costs to a prevailing employer in a FRSA whistleblower case.

The verdict and the appellate court decision stand in stark contrast to certain seven-figure awards of compensatory and punitive damages that have occurred in FRSA whistleblower cases.  The Armstrong decision provides a powerful tool for railroads defending these cases in the future. 

What the Jury Saw and Heard

Armstrong was a former BNSF conductor working on the Metra commuter line in Chicago, Illinois.  He alleged that he was called to his supervisor’s office and criticized for being in the incorrect uniform for the third time in two weeks. He claimed that his supervisor began yelling at him for not wearing the correct uniform; that he tried to leave because he felt threatened; and that the supervisor slammed the door on his knee and ankle.  Armstrong claimed that BNSF’s Terminal Superintendent threatened him with retaliation if he filed an injury report, which initiated a chain of retaliatory events that ultimately resulted in Armstrong’s termination.

In the months following the incident, Armstrong underwent surgeries to both his allegedly injured knee and his ankle.  BNSF discovered a video showing portions of the event, which established that the supposed attack could not have occurred as Armstrong claimed.  After a “violence in the workplace” investigation, including interviews and review of the video, BNSF’s management determined that Armstrong’s version of the incident was not truthful.  BNSF charged Armstrong and conducted a disciplinary hearing under the collective bargaining agreement, terminating Armstrong for insubordination, dishonesty, and misrepresentation.  Armstrong filed his FRSA complaint, alleging that BNSF terminated him in retaliation for reporting a workplace injury.

During the trial, BNSF focused on the implausibility of Armstrong’s claims, his inconsistent testimony, and other contradictory circumstantial evidence.  BNSF also presented evidence that Armstrong would have been dismissed even if he had never filed a personal injury report (protected activity under the FRSA) due to his insubordination and dishonesty regarding the alleged attack.  

The Verdict and Seventh Circuit Decision

Before retiring to deliberate its verdict, the jury received instructions on the law, including the following instruction concerning BNSF’s motive for terminating Armstrong, and its good faith belief as to whether he engaged in protected conduct:

In deciding Plaintiff’s retaliation claim, you should not concern yourselves with whether the Defendant’s actions were wise, reasonable, or fair. Plaintiff has to prove that Defendant’s decision to dismiss him was based on unlawful retaliation. Defendant cannot be held liable under the FRSA if you conclude that Defendant terminated Plaintiff’s employment based on its honestly held belief that Plaintiff did not engage in protected activity under the FRSA in good faith. 

“The jury returned a defense verdict in less than two hours. Armstrong appealed, arguing that the instruction misstated the law under FRSA because it implied that he had to prove that BNSF had an improper retaliatory motive, rather than just that his protected activity was a “contributing factor” to the discipline. Armstrong argued that under FRSA he was not required to prove any retaliatory motive.  The Seventh Circuit disagreed, and held that the instruction accurately stated the law.”

The court noted that although a FRSA plaintiff need not show that retaliation was the sole or even the main motivating factor in the adverse decision, the statute requires a showing that retaliation was at least a motivating factor.  The court wrote:

“That is to say, an employer violates the statute only if the adverse employment action is, at some level, motivated by discriminatory animus.”

The court found that it was proper to instruct the jury that BNSF could not be liable if its decision was based on its honest belief that Armstrong did not make a complaint in good faith.  “If BNSF fired Armstrong because it honestly believed that he was lying about his complaint, then it necessarily follows that it did not retaliate against Armstrong for filing a good faith complaint.”

The court also affirmed the trial court’s award of costs to BNSF, even though FRSA only directly references awarding costs to a prevailing plaintiff.  The court wrote that FRSA’s silence on cost awards to prevailing employers, even in conjunction with its mandate regarding prevailing employees, is insufficient to overcome the “venerable presumption” that prevailing parties are entitled to costs.  


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