In the
United States Court of Appeals
For the Seventh Circuit
Nos. 16‐3674 & 17‐1088
GLEN ARMSTRONG, SR.,
Plaintiff‐Appellant,
v.
BNSF RAILWAY COMPANY, d/b/a THE
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,
Defendant‐Appellee.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 7962 — John Robert Blakey, Judge.
ARGUED SEPTEMBER 18, 2017 — DECIDED JANUARY 18, 2018
Before BAUER, FLAUM, and SYKES, Circuit Judges.
BAUER, Circuit Judge. After he was fired, Glen Armstrong
sued his former employer, BNSF Railway Company (BNSF),
under the Federal Rail Safety Act, 49 U.S.C. § 20109 et seq.
(FRSA), alleging unlawful retaliation. The case proceeded to
2 Nos. 16‐3674 & 17‐1088
trial, and a jury returned a verdict in favor of BNSF. Armstrong
appeals, contending that an improper jury instruction misled
the jury. We affirm.
I. BACKGROUND
On May 4, 2010, Armstrong was working as the conductor
on a BNSF Metra line train that arrived at Union Station in
Chicago at approximately 5:30 p.m. Armstrong’s supervisor,
Chris Motley, was sitting in the “Glasshouse,” an office in
Union Station with windows looking onto the tracks, and saw
Armstrong exit the train and stand on the platform. Motley
noticed that Armstrong was not wearing the proper uniform
for the third time in two weeks and called him on the radio to
tell him to come to the Glasshouse.
BNSF Metra trains are equipped with on‐board video
cameras, one of which was positioned so as to capture images
of the door to the Glasshouse, the ramp leading to that door,
and partial views of the inside of the Glasshouse, including
Motley’s desk, through a window. The video camera captured
Armstrong walking up the platform and entering the Glass‐
house. John Nelson, another conductor, was also in the
Glasshouse when Armstrong entered, but left approximately
30 seconds later.
At trial, Armstrong testified that when he entered, Motley
began yelling at him about his uniform. He stated that he tried
to leave because he felt threatened by Motley’s behavior.
According to Armstrong, when he tried to go back through the
door, Motley pushed it shut, striking his left knee and foot.
Armstrong admitted that this could not be seen on the video
recording, but noted that there were approximately nine
Nos. 16‐3674 & 17‐1088 3
seconds of the video during which neither Armstrong nor
Motley could be seen. He said he did not feel pain initially, but
a short time later, he felt tingling and throbbing that continued
to worsen.
BNSF presented a different story at trial. Nelson testified
that when he exited the Glasshouse, he could hear Armstrong
curse and yell at Motley. Nelson heard Armstrong say that he
refused to talk to Motley until his union representative arrived.
At that point, Motley told Armstrong that he was being
removed from service for insubordination. Armstrong then left
the Glasshouse. BNSF showed the video recording at trial,
which showed Motley standing some distance from the door
as Armstrong exited. According to Motley, that distance was
approximately 10 to 12 feet, and he testified that he did not
push the door shut on Armstrong as he left.
Once Armstrong left the Glasshouse, Motley called his
supervisor, Clayton Johanson, to inform him that Armstrong
had been removed from service for insubordination. Johanson
immediately went to Union Station to address the situation.
Johanson spoke with Motley in the Glasshouse, then asked
Armstrong to write out a statement about what happened.
Armstrong wrote that Motley slammed the door on his leg,
smashing his knee and ankle. Johanson then took Armstrong
to a clinic on site where he was provided a soft walking shoe.
Johanson called his supervisor, Timothy Merriweather, to
inform him of the incident, who in turn informed the General
Manager, Matthew Igoe. Igoe reported the incident to Duncan
Brown, the Director of Human Resources. On May 5, 2010, the
day after the incident, Brown interviewed and took statements
4 Nos. 16‐3674 & 17‐1088
from Nelson, Motley, and Johanson. He also secured the video
recording, which both he and Igoe reviewed. Brown and Igoe
both testified at trial that, based on their review of the video,
they believed Motley could not have slammed the door on
Armstrong’s leg and that the incident could not have occurred
the way Armstrong described it in his statement.
Pursuant to the United Transportation Union’s collective
bargaining agreement with BNSF, Armstrong was entitled to
an investigation hearing prior to the assessment of any formal
discipline. On May 13, 2010, BNSF issued Armstrong a notice
of investigation for insubordination, dishonesty, and misrepre‐
sentation.
After numerous continuances, BNSF conducted an investi‐
gation hearing on March 25, 2011. Terminal Superintendent
Randy McMahan served as the conducting officer. The local
union chairman represented Armstrong at the hearing.
Merriweather presented the evidence, including the video
recording, on behalf of BNSF. Armstrong testified on his own
behalf, but did not call other witnesses or present any other
evidence. Based on the presentations at the hearing, McMahan
concluded that Armstrong had lied about what occurred in the
Glasshouse, and he recommended that Armstrong be termi‐
nated as a result.
McMahan forwarded that recommendation to the BNSF
Labor Relations Department and Igoe. The Labor Relations
Department reviewed the evidence, agreed with McMahan,
and recommended to Igoe that Armstrong be terminated. Igoe
relied on those recommendations and decided to terminate
Armstrong. BNSF notified Armstrong of his dismissal on
Nos. 16‐3674 & 17‐1088 5
April 5, 2011, citing insubordination, dishonesty, and misrepre‐
senting the origin of his injury as the causes of his termination.
Shortly thereafter, Armstrong filed a complaint with the
Occupational Safety and Health Administration, and then a
complaint in federal court, alleging that BNSF dismissed him
for reporting a work‐related injury, in violation of 49 U.S.C.
§ 20109(a)(4). The case proceeded to trial in January 2016, and
ended in a mistrial due to the jury’s failure to reach a unani‐
mous verdict.
The case was retried in September 2016. On September 21,
2016, after a nine‐day trial, the jury returned a verdict in favor
of BNSF. The verdict form presented the jury with two
questions. The first asked the jury whether Armstrong had
proved his prima facie case, setting forth each of the required
elements, to which the jury responded “No.” It then asked, if
Armstrong had proved his case, whether BNSF had proved
that it would have taken the same action absent Armstrong’s
protected behavior. Though the jury technically did not need
to respond after answering the first in the negative, they
responded “Yes” to the second question. The district court
noted that discrepancy, but stated that it did not find the two
responses to be contradictory. The clerk entered the judgment
the same day, which also included costs in favor of BNSF.
Armstrong timely appealed.
II. DISCUSSION
Armstrong raises two issues on appeal. First, he contends
that an erroneous jury instruction (“Instruction No. 24ʺ)
entitles him to a new trial. Second, he argues that the district
court erred in awarding costs to BNSF.
6 Nos. 16‐3674 & 17‐1088
A. Honest Belief Jury Instruction
“We review a district court’s decisions on jury instructions
for an abuse of discretion.” Brown v. Smith, 827 F.3d 609, 614
(7th Cir. 2016). Even if we find an abuse of discretion, a new
trial is warranted only where “an instruction misstates the law
in a way that misguides the jury to the extent that the com‐
plaining party suffered prejudice.” Id.
Armstrong’s suit is based on a claim of unlawful retaliation
in violation of § 20109(a)(4) of the FRSA. That section prohibits
railroad carriers from discharging, or otherwise discriminating
against an employee, “if such discrimination is due, in whole
or in part, to the employee’s lawful, good faith act done … to
notify, or attempt to notify, the railroad carrier … of a work‐
related personal injury … .” 49 U.S.C. § 20109(a)(4). To make
a prima facie showing of unlawful retaliation in this specific
context, an employee must show that: (1) he made an injury
complaint in good faith (i.e., engaged in a protected activity);
(2) the rail carrier knew of the complaint; (3) he suffered an
adverse employment action; and (4) the complaint was a
contributing factor in the adverse action. See id.
§ 20109(d)(2)(A) (incorporating by reference the rules and
procedures, including the burdens of proof, applicable to
enforcement actions under 49 U.S.C. § 42121(b)); see also 29
C.F.R. § 1982.104(e)(2). Once that showing is made, the rail
carrier can still escape liability if it can show, by clear and
convincing evidence, that it would have taken the same action
absent the protected activity. 49 U.S.C. § 42121(b)(2)(ii); 29
C.F.R. § 1982.104(e)(4).
Nos. 16‐3674 & 17‐1088 7
On appeal, Armstrong seeks review of Instruction No. 24,
which stated as follows:
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 Plain‐
tiff’s employment based on its honestly held belief
that Plaintiff did not engage in protected activity
under the FRSA in good faith.
He argues that Instruction No. 24 misstates the law insofar as
it implies that he was required to prove that BNSF had an
improper retaliatory motive, as opposed to simply showing
that his complaint was a “contributing factor” in his discharge.
Armstrong urges us to conclude that he is not required to
prove a retaliatory motive under the FRSA statutory scheme.
As support, he cites to a Third Circuit decision, which states
that a FRSA plaintiff “need not demonstrate the existence of a
retaliatory motive on the part of the employee taking the
alleged prohibited personnel action in order to establish that
his disclosure was a contributing factor to the personnel
action.” Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,
158 (3d Cir. 2013) (quoting Marano v. Dep’t of Justice, 2 F.3d
1137, 1141 (Fed. Cir. 1993)).
Despite Armstrong’s assertions to the contrary, we find that
while a FRSA plaintiff need not show that retaliation was the
sole motivating factor in the adverse decision, the statutory text
8 Nos. 16‐3674 & 17‐1088
requires a showing that retaliation was a motivating factor. The
statute prohibits intentional discrimination in response to an
employee’s performance of a protected activity. See 49 U.S.C.
§ 20109(a) (a railroad carrier “may not discharge, demote,
suspend, reprimand, or in any other way discriminate against
an employee”) (emphasis added). “[T]he essence of this
intentional tort is discriminatory animus.” Kuduk v. BNSF Ry.
Co., 768 F.3d 786, 791 (8th Cir. 2014) (internal quotation marks
and citation omitted). That is to say, an employer violates the
statute only if the adverse employment action is, at some level,
motivated by discriminatory animus.
It is true that to make a prima facie case, a plaintiff is not
required to conclusively demonstrate that retaliation was the
only—or even main—motivation. Id. (citing Coppinger‐Martin
v. Solis, 627 F.3d 745, 750 (9th Cir. 2010)). That does not mean,
however, that a plaintiff is not required to show that retaliation
played at least some role in the decision. Id. (noting that
“contributing factor” is a more lenient standard, but explaining
that “the contributing factor that an employee must prove is
intentional retaliation prompted by the employee engaging in
a protected activity”). A showing of discriminatory animus,
which the statute requires, necessarily includes some proof of
retaliatory motive.1
1
We agree with the Eighth Circuit’s assessment that the Third Circuit’s
reliance on Marano v. Department of Justice as a basis for deciding Araujo, 708
F.3d at 158, may have been misplaced. The whistleblower statute at issue in
Marano requires only a showing of causation in fact, see 2 F.3d at 1140–41,
and not a showing of discrimination as required by the FRSA. See Kuduk,
768 F.3d at 791 n.4.
Nos. 16‐3674 & 17‐1088 9
Armstrong contends that because the FRSA requires only
that he show the protected activity was a contributing factor in
the adverse decision, he is not required to provide any proof of
an employer’s retaliatory motive. He is correct that the
“contributing factor” standard is lower than those applied
in other anti‐discrimination contexts. See, e.g., Addis v. Dep’t
of Labor, 575 F.3d 688, 691 (7th Cir. 2009) (explaining that “a
‘contributing factor’ is something less than a substantial or
motivating one” as is required in typical employment discrimi‐
nation actions). However, “contributing factor” is merely a
standard of causation, and it does not eliminate the need to
demonstrate the existence of an improper motive. See Kuduk,
768 F.3d at 791. The analysis of whether the employer pos‐
sessed an improper (i.e., retaliatory) motive is separate from
the analysis of whether, and to what extent, that motive
influenced the employer’s actions.
Turning then to Instruction No. 24 itself, we find that it
accurately conveyed these principles. The instruction states
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. That is simply another way of saying that BNSF could
not be liable if it was not motivated by retaliation. 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.
While the instruction may not have represented the clearest
possible statement of the applicable law, it was not inaccurate.
Therefore, the district court did not abuse its discretion by
including the instruction.
10 Nos. 16‐3674 & 17‐1088
Though we find that Instruction No. 24 was an appropriate
and accurate statement of the law, it is important to highlight,
as a final point, that any error would have been harmless. In
addition to rejecting Armstrong’s prima facie case, the jury
found for BNSF on its affirmative defense that it would have
taken the same action absent any protected activity. It is true
that, technically speaking, the jury was not required to deliver
a verdict on the affirmative defense, having first found that
Armstrong failed to make a prima facie showing. However,
there is no inherent inconsistency in the jury’s responses to
those two inquiries. Regardless of whether it is characterized
as a rejection of Armstrong’s case, or an acceptance of BNSF’s
defense, it was clearly a defense verdict. Thus, even if Instruc‐
tion No. 24 was a misstatement of the law, Armstrong was not
prejudiced.
B. Award of Costs
Armstrong’s other argument on appeal is that the district
court erred in awarding costs to BNSF because the FRSA does
not allow for an award of costs to prevailing employers.
“District courts have broad discretion in determining whether
and to what extent prevailing parties may be awarded costs,”
and we will only reverse if there is a clear abuse of that
discretion. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945
(7th Cir. 1997).
Our starting point for analyzing an award of costs is
Federal Rule of Civil Procedure 54(d). That Rule provides,
“[u]nless a federal statute, these rules, or a court order pro‐
vides otherwise, costs—other than attorney’s fees—should be
allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). The
Nos. 16‐3674 & 17‐1088 11
presumption created by Rule 54(d) in favor of awarding costs
is difficult to overcome. Weeks, 126 F.3d at 945; see also Marx v.
Gen. Revenue Corp., 568 U.S. 371, 377 (2013) (“Rule 54(d)
codifies a venerable presumption that prevailing parties are
entitled to costs.”).
In Marx, the Supreme Court made clear that a district
court’s discretion to award costs under Rule 54(d) can be
displaced only by a federal statute that is contrary to the Rule.
Marx, 568 U.S. at 377. A statute is contrary to the Rule if, for
example, it precludes an award of costs altogether, or if it
limits the circumstances under which the court may award
costs, thereby removing its discretion. Id. at 377–78.
The FRSA provides that an employee who prevails in an
action against his employer is entitled to receive litigation costs
as part of his recovery. 49 U.S.C. § 20109(e)(2)(C). The statute,
however, is silent as to awarding costs to a prevailing em‐
ployer. According to Armstrong, this indicates that only
prevailing employees are entitled to costs, and that the stat‐
ute’s silence precludes prevailing employers from recovering
costs, even under Rule 54(d).
We disagree. The FRSA presents us with a situation similar
to that which was before the Court in Marx. In addressing the
cost award provisions of the Fair Debt Collection Practices Act,
the Court stated that where a statute is silent, it “does not
displace the background rule that a court has discretion to
award costs.” Marx, 568 U.S. at 380.
Armstrong argues that by specifying that a court must
award costs to prevailing employees, Congress intended to
preclude cost awards in all other situations. However, the
12 Nos. 16‐3674 & 17‐1088
Marx Court heard and rejected a nearly identical argument. Id.
at 380–81. The FRSA’s silence on cost awards to prevailing
employers, even in conjunction with its mandate regarding
prevailing employees, is insufficient to overcome the “venera‐
ble presumption that prevailing parties are entitled to costs.”
Id. at 377; see also Leimkuehler v. Am. United Life Ins. Co., 713 F.3d
905, 915 (7th Cir. 2013) (citing Marx for the proposition that “a
statute ‘provides otherwise’ for purposes of Rule 54(d) only if
it is literally contrary to the rule, in the sense that it constricts
discretion that the rule recognizes”). Therefore, the district
court did not abuse its discretion by awarding costs to BNSF.
III. CONCLUSION
For the foregoing reasons, the jury verdict and award of
costs in favor of BNSF are AFFIRMED.