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9th Circuit Rules in Favor of BNSF Employee Represented by Nichols Kaster, PLLP

On January 30, 2019, the Ninth Circuit Court of Appeals ruled in favor of Plaintiff Michael Frost, a BNSF track maintenance worker who is represented by Lucas Kaster and James Kaster of Nichols Kaster, PLLP. In the unanimous decision, the Ninth Circuit reversed a trial verdict against Mr. Frost and remanded for a new trial because the honest belief jury instruction requested by BNSF and given by the trial court conflicted with the clear language of the Federal Railway Safety Act (“FRSA”) and granted the jury a short-cut to rule for BNSF while ignoring any evidence of retaliation.  

The case, titled Michael Frost v. BNSF Railway Co., 9:15-cv-000124-DWM, was originally tried to a jury in Montana in December 2016. Mr. Frost alleged that he was retaliated against when BNSF terminated his employment after he reported suffering from PTSD. Mr. Frost was diagnosed with PTSD after he was nearly struck by an oncoming train while repairing a section of track near Brimstone, Montana. Mr. Frost’s supervisor had released track authority, which prevents trains from passing on a section of track during repairs, but failed to inform Mr. Frost and his fellow crew members.

Following the incident, Mr. Frost requested medical attention and later reported his diagnosis to BNSF. A few days later, BNSF charged Mr. Frost with several rules violations that later led to his termination. Evidence introduced at trial suggested that other employees who were also standing near the oncoming train but who had not reported an injury were not disciplined or terminated by BNSF.     

The Ninth Circuit’s decision addresses a hotly debated subject within the FRSA landscape. The question before the Court was whether the honest belief instruction was proper because the FRSA’s contributing factor standard required plaintiffs to separately prove discriminatory intent. In the opinion, the Ninth Circuit definitively held that there is no requirement that FRSA plaintiffs separately prove discriminatory intent, and thus the instruction was error.

The oral argument is available here.

The decision is available here.