Employment Law Daily Erroneous ‘honestly held belief’ jury instruction misallocated burden, results in another reversal
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Tuesday, August 27, 2019

Erroneous ‘honestly held belief’ jury instruction misallocated burden, results in another reversal

By Ronald Miller, J.D.

The only interpretation consistent with certain instructions given to the jury was that it was told to consider the “honestly held belief” instruction as part of the employee’s own prima facie case, and not part of the employer’s heightened burden under the clear-and-convincing-evidence standard.

In a retaliation claim under the Federal Railroad Safety Act, the Eighth Circuit agreed with an employee that jury instructions misstated the “honestly held belief” defense in the context of the FRSA’s contributing factor standard and misallocated and misstated the burden of proof. The “honestly held belief” instruction, as given in this case, stated that BNSF was excused from liability if it honestly believed the employee engaged in wrongdoing. However, the instruction did not reference the contributing-factor standard. Moreover, the instructions incorporated the defense into the employee’s case, failing to allocate the burden of proof to the employer and to identify the burden of proof as clear and convincing. Accordingly, the appeals court reversed an adverse jury verdict on the employee’s retaliation claims (Blackorby v. BNSF Railway Company, August 23, 2019, Melloy, M.).

Eye injury. The employee suffered an eye injury while at work. He reported to a union foreman that he had gotten something in his eye. The foreman recommended saline eye drops that provided partial relief. The existence and severity of the eye injury was not immediately apparent, and the employee did not immediately report the incident to his employer through official channels. In fact, a small metal shard had entered his eye. Several days later, his eye swelled substantially, and he went to an eye doctor. The shard was discovered and removed.

That same day, the employee reported the matter to a BNSF manager, and told the manager that he had a follow-up appointment the next day. The manager passed the information along to another company official who asked to accompany the employee to his appointment. The employee checked with his union representative, who said the official could accompany the employee to the appointment but could not enter the examining room or ask for the employee’s records. The employee consented to allow the BNSF official to come with him. The doctor told the employee that his eye would be okay and prescribed an antibiotic.

In the doctor’s office, the official asked the employee if he wanted to formally report the injury. According to the employee, the official was “adamant” that he not report the injury and suggested that he could say the injury happened at home. The employee called his manager and told him that he was unwilling to lie. The next day at work, the employee formally reported the injury.

Investigation. Two days later, the employee received notice that he was under investigation for violating a company rule that mandated work-related injuries be reported “immediately” to the “proper manager.” Following a hearing, the employee was given a 30-day suspension and placed on a one-year probation. The employee filed a complaint with OSHA and then filed this action.

A jury returned a verdict for the employee, awarding him compensatory damages. That judgment was reversed on appeal; the Eighth Circuit held that the jury instructions were flawed in that they stated expressly that the plaintiff need not show the defendant acted with a retaliatory animus. Rather, relying on Kuduk v. BNSF Railway Co., the Eighth Circuit held that a FRSA retaliation claim requires the plaintiff to prove that the employer acted with intentional retaliatory animus.

On remand, the parties conducted a second jury trial as to liability only. This time, the jury returned a verdict for BNSF. On appeal, the parties focus on four instructions that the district court used over the employee’s objections.

Jury instructions. The employee’s first challenge related to the instructions setting forth the elements of his prima facie case (Instruction 16), and the employer’s affirmative defense (Instruction 18). According to the employee, these instructions, taken together, fail to accurately express the law as set forth in prior opinions of the Eighth Circuit.

However, the appeals court concluded that the instructions, read together, adequately conveyed the applicable law to the jury. Instruction 16 incorporated a showing of intentional retaliatory animus as an element of the employee’s prima facie case. It also conveyed expressly the statutory standard that the protected report contribute “in whole or in part” to the adverse action. Instruction 18, in turn, identified the statutory “clear and convincing evidence standard for BNSF’s burden of proving that it would have taken the same action regardless of the employee’s protected activity. Because these two instructions captured the requirements discussed in Kuduk and Blackorby I, the employee’s challenge was rejected.

Contributing-factor standard. The employee’s second challenge was related to Instructions 17 and 19. The first sentence of Instruction 17 was an unobjectionable statement of the business judgment rule, and simply stated that the jury need “not concern” itself with the wisdom, reasonableness, or fairness of the employer’s actions. However, the second sentence was an incorrect statement of the law in the context of the contributing-factor standard. It stated that the employer cannot be held liable under the FRSA if the jury concludes the employer disciplined the employee based on its honestly held belief that he engaged in misconduct or committed a rules violation. Rather, a retaliatory motive gives rise to FRSA liability if retaliation was a “contributing factor” in the discipline action. Liability will still exist notwithstanding such a belief if the employer’s retaliatory motive also played a contributing role in the decision, and if the employer fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected injury report.

Misallocation and misstatement of the burden of proof. Moreover, this instructional error was compounded by the express misallocation and misstatement of the burden of proof. While Instruction 17 contained no reference to a burden of proof or to a clear-and-convincing-evidence standard, Instruction 19 expressly and erroneously described the burden of proof for Instructions 16 and 17 as being part of the employee’s case. Therefore, the only interpretation consistent with Instructions 17 and 19 showed that the jury was told to consider the “honestly held belief” instruction as part of the employee’s own prima facie case and not part of BNSF’s heightened burden under the clear-and-convincing-evidence standard.

Accordingly, the appeals court reversed the judgment of the district court and remanded for further proceedings consistent with this ruling.

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