The U.S. Court of Appeals for the Eighth Circuit has, for the second time, reversed and remanded a railroad employment case. Both reversals were based on jury instructions the Court deemed erroneous.

Edward Blackorby was an employee of the BNSF Railway. He sustained an eye injury while on duty, but the existence and severity of the injury was not immediately apparent. Several days after Blackorby experienced eye irritation at work, a doctor removed a small metal shard from his eye.

Shortly after the shard was removed, Blackorby notified his supervisor of the injury. According to Blackorby, his supervisors discouraged him from reporting the injury by telling Blackorby that he would be investigated for not reporting the injury immediately after it occurred. Nevertheless, Blackorby filed a formal injury report and was later notified by BNSF that he would be investigated. After the investigation, BNSF assessed discipline against Blackorby for a late report of personal injury.

Blackorby filed a complaint with OSHA based on alleged violations of the whistleblower provisions of the Federal Rail Safety Act, 49 U.S.C. §20109. OSHA determined that BNSF violated Blackorby’s rights under the FRSA. These findings were challenged before an administrative law judge, but while the challenge was pending, Blackorby filed the present lawsuit in federal court for de novo review.

The case was tried to a jury, which was instructed that Blackorby was not required to show that BNSF had a retaliatory motive in disciplining him. The jury returned a verdict for Blackorby and awarded him $58,240 in damages. The 8th Circuit reversed and remanded, holding that the jury instruction was erroneous, because Blackorby was in fact required to show that BNSF acted with retaliatory animus. Blackorby v. BNSF Railway Co., 849 F. 3d 716 (8th Cir. 2017).

On remand, the court held a second jury trial on liability only. This time, the jury returned a verdict for BNSF. On appeal, Blackorby challenged several of the trial court’s instructions to the jury. The 8th Circuit again agreed that the trial court committed prejudicial instructional error. Blackorby v. BNSF Railway Co., No. 18-2372 (8th Cir. 2019).

First, the 8th Circuit found error in an instruction stating that BNSF could not be held liable if it disciplined Blackorby based on an honestly held belief that he engaged in misconduct or committed a rules violation. The Court held that liability can still exist notwithstanding such a belief, (1) if the employer’s retaliatory motive also contributed to the decision to discipline, and (2) 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 activity.

The Court also determined that the instructions were erroneous because they misallocated and misstated the burden of proof. The instructions erroneously described the “honestly held belief” issue as part of Blackorby’s prima facie case and not a part of BNSF’s burden under the “clear-and-convincing-evidence standard”. The case was remanded to the District Court where we anticipate the case will again be tried before a jury with modified instructions.