FILED
NOT FOR PUBLICATION
MAR 02 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ELLIOTT, Nos. 15-35785
15-35899
Plaintiff-Appellee,
D.C. No. 3:14-cv-05054-RBL
v.
BNSF RAILWAY COMPANY, a MEMORANDUM*
Delaware corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted February 7, 2018
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
BNSF Railway Company appeals the judgment following a jury verdict in
favor of Michael Elliott, who alleged retaliation in violation of the Federal
Railroad Safety Act (FRSA), 49 U.S.C. § 20109. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. BNSF’s contention that the district court applied the wrong legal standard
to its same-decision affirmative defense is without merit. See 49 U.S.C.
§§ 20109(d)(2)(A), 42121(b)(2)(B)(iv). The record does not support BNSF’s
contention that the district court required it to prove Elliott actually engaged in
misconduct. On the contrary, the record confirms the district court, consistent with
the jury instructions, required BNSF to prove only that it sincerely believed the
misconduct occurred.
2. Substantial evidence supports the jury’s finding that Elliott’s safety
complaints were a “contributing factor” in the investigative hearings and Elliott’s
termination. See 49 U.S.C. § 42121(b)(2)(B)(ii); Wallace v. City of San Diego,
479 F.3d 616, 624 (9th Cir. 2007) (“A jury’s verdict must be upheld if it is
supported by substantial evidence.”). A reasonable jury could have inferred from
the evidence, including email exchanges among BNSF managers, that Elliott’s
safety complaint prompted the Federal Railroad Administration inspections and
resulting violation finding and fine. A reasonable jury could have also inferred a
retaliatory motive based on evidence of BNSF’s animus toward Elliott, as well as
from the temporal proximity between Elliott’s safety complaint and subsequent
safety violation assessment, and the alleged retaliatory actions.
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3. Substantial evidence likewise supports the jury’s finding that BNSF did
not sincerely and honestly believe Elliott actually engaged in misconduct
warranting dismissal. A reasonable jury could have concluded BNSF
manufactured the physical altercation with supervisor Dennis Kautzmann to create
a pretext for the retaliatory actions. See Josephs v. Pac. Bell, 443 F.3d 1050,
1062–63 (9th Cir. 2006). A reasonable jury also could have inferred that BNSF
knew about Elliott’s felony conviction since 2007, and raised the conviction in
2011 solely as a pretext for retaliating against him.
4. The district court did not abuse its discretion when it sustained Elliott’s
objection to the admission of investigative hearing transcripts as cumulative. See
Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1202 (9th
Cir. 2013) (“A district court’s evidentiary rulings should not be reversed absent
clear abuse of discretion and some prejudice.” (quoting S.E.C. v. Jasper, 678 F.3d
1116, 1122 (9th Cir. 2012)). The BNSF managers who made the decision to
terminate Elliott testified at trial about the evidence they relied on from the
investigative hearings. The district court also did not abuse its discretion when it
refused to admit documentary evidence regarding other BNSF employees who
were dismissed for violating company policies; BNSF suffered no prejudice
because the district court permitted BNSF to elicit limited, general testimony on
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this topic. Finally, the district court did not abuse its discretion when it rejected
BNSF’s proposed business judgment rule instruction. The business judgment rule
is not a legal defense to an FRSA claim, and BNSF cites no authority for the
proposition that trial courts must give such an instruction in FRSA retaliation
cases.
5. We reject BNSF’s contention that Elliott offered no evidence of mental
anguish. Elliott’s testimony regarding his mental anguish adequately supports the
jury’s damages award. See Johnson v. Hale, 13 F.3d 1351, 1352 (9th Cir. 1994).
6. We need not decide whether a jury may award front pay in FRSA cases.
Because BNSF did not object to the instruction regarding front pay, we review for
plain error. See Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015). Here, any
error was not obvious. See 49 U.S.C. § 20109(e)(2) (categorizing reinstatement as
“damages”).
7. The district court did not abuse its discretion when it ruled on Elliott’s
untimely filing of his attorney’s fees motion. Although it only discussed one of the
four Pioneer/Briones factors in determining excusable neglect, the record supports
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findings consistent with the district court’s decision. See Bateman v. U.S. Postal
Serv., 231 F.3d 1220, 1225 n.3 (9th Cir. 2000); Ahanchian v. Xenon Pictures, Inc.,
624 F.3d 1253, 1262 (9th Cir. 2010).
AFFIRMED.
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