Fresquez v. BNSF Railway

Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 10, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
BRANDON FRESQUEZ,
Plaintiff - Appellee,
v. No. 21-1118
BNSF RAILWAY CO.,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-00844-WJM-SKC)
_________________________________
Bryan P. Neal, Holland & Knight LLP, Dallas, Texas (Keith M. Goman, Hall & Evans,
LLC, Denver, Colorado, with him on the briefs), appearing for Appellant.
Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota (Nicholas D. Thompson,
Casey Jones Law, Appleton, Wisconsin, Jonathan L. Stone, Moody Law Firm,
Portsmouth, Virginia, Eleanor E. Frisch, Apollo Law LLC, Minneapolis, Minnesota, and
Colin R. Reeves, Apollo Law LLC, Brooklyn, New York, with him on the brief),
appearing for Appellee.
_________________________________
Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 2
Table of Contents
Introduction ......................................................................................................................... 4
I. Factual background ................................................................................................. 5
II. Procedural background .......................................................................................... 17
III. Analysis................................................................................................................... 21
A. Is BNSF entitled to judgment as a matter of law on the merits of Fresquez’s claims
because he failed to prove that he engaged in any actionable protected activity
and/or because BNSF proved its same-decision defense? ..................................... 21
1. Standard of review ............................................................................................ 22
2. The evidentiary burdens in an FRSA case ........................................................ 22
3. Did Fresquez prove he engaged in actionable protected activity? .................. 24
4. BNSF’s remaining arguments ........................................................................... 35
5. BNSF’s same-decision defense ......................................................................... 44
B. Is BNSF entitled to a new trial due to the district court’s admission of character
evidence and/or other allegedly prejudicial evidence?.......................................... 51
1) Standard of review ............................................................................................ 52
2) Procedural history of the issue ......................................................................... 53
3) Analysis ............................................................................................................. 56
C. Did the district court err in denying BNSF’s combined request for a new trial on
the issue of compensatory damages or, in the alternative, a remittitur of
compensatory damages? ........................................................................................ 59
1) Standard of review ............................................................................................ 59
2) Procedural history of the issue ......................................................................... 60
3) Analysis ............................................................................................................. 65
D. Is BNSF entitled to judgment as a matter of law as to punitive damages? ............ 67
1) Standard of review and applicable law ............................................................ 67
2
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 3
2) Procedural history of the issue ......................................................................... 68
3) Analysis ............................................................................................................. 70
E. Did the district court err in awarding Fresquez ten years’ worth of front pay? ... 72
1) Standard of review ............................................................................................ 72
2) Procedural history of the issue ......................................................................... 73
3) Failure to distinguish between front pay and damages for loss of future
earnings capacity .............................................................................................. 76
4) The amount of the front pay award ................................................................... 79
IV. Affirmance of judgment of district court ................................................................ 84
3
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 4
Introduction
Plaintiff Brandon Fresquez filed this action against his former employer,
defendant BNSF Railway Company (BNSF), claiming that BNSF violated the Federal
Railroad Safety Act (FRSA) by terminating his employment in retaliation for him
engaging in certain activities that are expressly protected under the FRSA. The case
proceeded to a jury trial. The jury found in favor of Fresquez on his claim of retaliation
under the FRSA, and it awarded him $800,000 in compensatory damages and $250,000
in punitive damages. Following the trial, Fresquez moved for an award of back and front
pay. The district court granted that motion in part and awarded Fresquez a total of
$696,173 in back and front pay, bringing the total judgment to $1,746,173, plus interest
from the date of entry of judgment.
BNSF now appeals. BNSF argues that it is entitled to judgment as a matter of law
on the merits of Fresquez’s claims, and, alternatively, judgment as a matter of law on the
issue of punitive damages. BNSF further argues that it is entitled to a new trial on the
merits of Fresquez’s claims based on the district court’s admission of character and other
prejudicial evidence. BNSF also argues that it is entitled to a new trial on the issue of
compensatory damages. Lastly, BNSF argues that the district court abused its discretion
by awarding Fresquez ten years’ worth of front pay.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject BNSF’s arguments
and affirm the district court’s judgment.
4
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 5
I. Factual background1
BNSF is a Texas-based freight transportation company that operates an extensive
interstate railroad network. BNSF is designated as a Class I freight railroad by the
federal government.
Fresquez, a Colorado resident, began working for BNSF’s Maintenance of Way
Department in November 2005. Between 2006 and May 2016, Fresquez worked
primarily as a track inspector. The track inspector position requires extensive training,
including a week-long community college class, and regular certification testing.
A track inspector’s job is to identify and report track defects, which are deviations
from BNSF’s or the Federal Railroad Administration’s (FRA) track safety standards.
FRA regulations set forth a specific schedule for track inspections. 49 C.F.R.
§ 213.233(c). Fresquez monitored and inspected the railroad tracks in his assigned
geographic area, which covered in part the Denver metropolitan area, to make sure they
complied with BNSF and FRA standards.
When a track inspector discovers a track defect, he or she must take one of three
remedial actions, depending on the severity and classification of the defect. Some types
of track defects require the inspector to take the track out of service immediately, which
means that the track cannot be used until the defect is repaired. Other types of defects, in
1
Because the jury found in favor of Fresquez on his FRSA claim, we recount the
facts that were presented to the jury in the light most favorable to Fresquez. See Tudor v.
Se. Okla. Univ., 13 F.4th 1019, 1025 n.1 (10th Cir. 2021).
5
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 6
contrast, require only that the maximum speed limit be lowered on the section of track
containing the defect until such time as the defect is repaired. This type of remedial
action applies, in part, to what are known as class-specific defects. A section of track
containing a class-specific defect may also be “reclassified to the next lowest class of
track for which it does meet all of the [regulatory] requirements” and, if so, will
permanently operate at a lower range of speeds unless and until the identified defect is
repaired and the section of track is reclassified into a higher class. See 49 C.F.R.
§ 213.9(b). Lastly, defects that are characterized as non-class specific do not require any
immediate remedial action, but must be repaired within thirty days. If a non-class
specific defect is not repaired within thirty days, the section of track on which it is
located must be taken out of service until the defect is repaired.
During the time that Fresquez worked as a track inspector for BNSF, track defects
were reported by inputting information about the defect into an electronic track
inspection database that BNSF maintained and referred to as the Track Inspection
Management System (TIMS). More specifically, a track inspector would enter an
identified defect into the TIMS system by entering the milepost location of the defect,
selecting the type of defect involved, and then entering information about the type of
repair that was required. Track inspectors and their supervisors accessed and worked
with information in the TIMS system on a daily basis.
Fresquez, in his role as a track inspector, reported directly to a roadmaster named
Michael Paz. Paz in turn reported directly to a division engineer named Mark Carpenter.
6
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 7
BNSF used engineering scorecards to rank its management employees, including
division engineers and roadmasters. One part of the engineering scorecards focused on
velocity, or the speed of trains across a manager’s territory. Speed restrictions that were
imposed on sections of track, such as those imposed due to the existence of track defects,
could negatively affect this part of an engineering scorecard and, in turn, negatively
impact a manager’s ranking. Carpenter viewed the engineering scorecards as important
and emphasized them to the managers who worked under him.
It is essentially undisputed that Carpenter interpreted the FRA’s regulations
regarding non-class specific defects in a manner that was contrary to the FRA’s published
compliance manual. Specifically, Carpenter took the position that tracks containing non-
class specific defects could remain in service even if the defects had not been repaired
within thirty days after identification. Notably, however, Carpenter never asked BNSF’s
in-house attorneys to assist him in interpreting the regulation, nor did Carpenter ever
contact the FRA to verify if his interpretation was correct. Nevertheless, Carpenter
conveyed his interpretation to all of the management employees who worked for him,
including Paz.
Beginning in 2014 or 2015, Fresquez became suspicious that Carpenter and Paz
were treating non-class specific defects in a manner different than required by the FRA
regulations. Specifically, Fresquez began noticing isolated incidents of track defects that
he knew had been identified in the field but did not appear in the TIMS system. This
7
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 8
caused Fresquez to suspect that management employees such as Carpenter and Paz were
removing identified track defects from the TIMS system.
Around this same time, Fresquez identified a defect on a petroleum track in
Denver. Fresquez called Paz and asked him to come out to the location of the defect.
Paz agreed with Fresquez that a defect existed and told Fresquez that he had done a good
job. Paz in turn notified the employee in charge of the track that the defect needed to be
repaired. Shortly thereafter, however, Paz was called to Carpenter’s office. When Paz
returned to the site of the defect, he told Fresquez, “I’m here to tell you from Mark
Carpenter . . . if that defect is in the [TIMS] system tonight, you will be wrote [sic] up for
insubordination.” Aplt. App., Vol. VI at 1434.
Following that incident, Carpenter decided one day to accompany Fresquez on his
route in order to inspect the defects that Fresquez had identified. When Fresquez and
Carpenter arrived at one of the first defects, Carpenter belittled Fresquez and told him to
remove the defect from the TIMS system because Fresquez had marked it 200 feet short
of the actual location. Carpenter subsequently told Fresquez to remove “a couple other
defects” from the TIMS system. Id. at 1436. Although doing so violated federal law,
Fresquez did as Carpenter directed because he was scared of losing his job and the
medical benefits that came with the job. The experience, however, “started a war within”
Fresquez because he believed he was violating federal law by removing the defects from
the TIMS system. Id. at 1438.
8
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 9
On April 29, 2015, Fresquez was at work and notified Ryan Akers, another
roadmaster who worked under Carpenter, that he was going to take Track 533 out of
service because it contained a defect. Track 533 was a track that received regular daily
traffic because it was used to transport grain and automobiles. Akers responded by
telling Fresquez that if he wanted to continue receiving a paycheck, he would inspect the
track again and report that it showed no defects. Fresquez said to Akers, “You know
what you are telling me to do. You are telling me to falsify reports.” Id. at 1440. Akers
responded by kicking Fresquez out of his office. Fresquez contacted his union
representative and informed her of the incident. According to Fresquez, he later checked
the TIMS system and determined that the defect had been removed from the system.
Upon further investigation, Fresquez learned that Akers had instructed BNSF’s
information technology department to remove the defect, as well as approximately
thirty-four other defects, from the TIMS system.
Shortly thereafter, Fresquez confronted Carpenter at a group safety briefing about
the removal of defects from the TIMS system. Carpenter responded by moving Fresquez
from the room where the safety briefing was occurring, taking him to a separate office,
and belittling him. According to Fresquez, Carpenter told him that it was not his job to
take tracks out of service or to find defects, and that his only job was to write reports.
Carpenter also allegedly told Fresquez that he was a bad inspector and that Carpenter
would either fire or disqualify him if he continued to find track defects. Fresquez asked
for union representation several times during the incident with Carpenter, but Carpenter
9
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 10
allegedly told Fresquez to never call the union again. Throughout the incident, Carpenter
repeatedly told Fresquez to not “report defects that are going to stop traffic, that are going
to take a lot of hours to fix.” Id. at 1461.
Following this incident with Carpenter, Fresquez transferred to a foreman flagman
position, which was the first vacant position at BNSF that he could transfer to based on
his seniority.2 The foreman flagman position did not require Fresquez to report defects.
No discipline issue arose while Fresquez worked in this position. In February 2016,
however, another BNSF employee with greater seniority took the foreman flagman job
from Fresquez. This meant that Fresquez had to return to the track inspector position in
Denver that he previously held. Because Fresquez was certified as a track inspector, he
was not, according to BNSF’s own policies, eligible to work in a lower position such as
laborer or trackman.
In March 2016, Fresquez found a defect in a track located by the stockyards in
Denver. Fresquez notified Paz of the defect and Paz immediately traveled to the site of
the defect. Although Fresquez had previously placed an order limiting the speed on the
track to no more than ten miles per hour, Paz removed that order and placed the track
back at the maximum authorized speed. According to Fresquez, Paz’s action violated
federal regulations.
2
Every two weeks BNSF issued a list of vacant jobs and BNSF employees could
“put in” for those positions. Aplt. App., Vol. VI at 1468. The applicant with the most
seniority received the position.
10
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 11
After this incident, Fresquez transferred again to an open foreman flagman
position. Fresquez, however, was only able to work in that foreman flagman position
until May 2, 2016, when another BNSF employee with seniority displaced him. At that
point, Fresquez had to again return to the track inspector position.
On May 2, 2016, which was Fresquez’s first day back working as a track
inspector, Paz told him “not to do anything so [Paz] could get his house in order.” Id. at
1479. Fresquez responded to Paz’s statement by driving around the rest of the day and
not inspecting any tracks.
On May 3, 2016, Fresquez began inspecting tracks and found a severe defect.
Fresquez texted Paz and informed him of the defect. According to Fresquez, this severe
defect had existed for several months and should have been, but was not, repaired in
March or April of 2016. Fresquez determined that Paz had entered information into the
TIMS system falsely indicating that this severe defect had been repaired. Fresquez
confronted Paz about this information in the TIMS system and said “I know what
happened to my defects.” Id. at 1482. Paz allegedly laughed at Fresquez in response.
On May 4, 2016, Fresquez texted Paz and told him that he had taken a section of
track out of service due to the existence of a defect. The section of track was located in
downtown Denver and was considered an important track because it was situated near an
amusement park and an arena. Paz texted Fresquez back and said “that pulling tracks
[out of service] doesn’t make friends.” Id. at1484.
11
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 12
On May 5, 2016, Fresquez discovered a track defect, specifically a broken tie
located on a curved section of track, that he had previously identified in February 2016.
When he first identified this defect in February 2016, Fresquez wanted to place a ten-
mile-per-hour limit on the section of track containing the defect, but Paz decided to treat
it as a non-class specific defect, which meant that trains could continue to run at regular
speed over the track for a period of thirty days. When Fresquez rediscovered the defect
on May 5, 2016, he concluded that the track needed to be taken out of service until it was
repaired. Paz, however, wanted Fresquez to reclassify the defect as a class-specific
defect so that trains could continue to run over the track containing the defect. Fresquez
told Paz he was going to “call [his] friends in high places,” meaning he was going to call
the FRA. Id. at 1489.
After concluding the conversation with Paz, Fresquez called an FRA agent he
knew and described what had occurred regarding the defect. The FRA agent confirmed
that Fresquez was correct regarding how the defect should be handled and that Fresquez
could not reclassify the defect as Paz wanted him to do. After talking to the FRA agent,
Fresquez called Paz and they negotiated to fix the defect at issue. During the
conversation, Fresquez said to Paz, “Admit that you are falsifying reports, the defects.”
Id. at 1491. Paz allegedly admitted to doing so, and then stated, “We’ll work on it,” and
“We have to find a happy meeting place.” Id. Paz also stated that he had Carpenter on
his side and that “they don’t lose.” Id. at 1492. Fresquez interpreted this statement to
mean that Carpenter and Paz were going to continue the practice of handling defects in a
12
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 13
manner inconsistent with federal regulations. Lastly, Paz told Fresquez during the call,
“I’ll . . . walk behind you and find 8 missing [rail] clips and fire you.” Id. Fresquez
understood this to mean that Paz would follow him while on duty, wait until he observed
Fresquez violating a rule, and then fire him.
On May 5, 2016, Fresquez discovered another defect that he had identified in
February 2016, but had not been repaired and had been removed from the TIMS system.
Under the FRA’s regulations, this defect required Fresquez to reduce the maximum speed
on the section of track containing the defect. Fresquez called the dispatcher and told him
what action he was taking with regard to the track. Approximately twenty minutes after
placing the slow order on the track, Fresquez received a call from Paz directing him to
meet at the site of the defect. Fresquez and Paz then met at the site of the defect. Also
present on-site was Jay Herzog, a BNSF foreman, and Herzog’s repair crew.
Paz stated that he did not see the defect that Fresquez had identified. Fresquez
stated in response that the defect was not the type that could be observed and instead had
to be measured. Paz said to Fresquez, “I do not have to prove . . . the defect’s not there.
It’s your job to prove the defect is there.” Id., Vol. X at 2630–31. According to
Fresquez, Paz then twice stated to him, “Do you want to string-line the defect?”3 Id.,Vol. VI at 1540. Fresquez interpreted Paz’s statements as questions rather than
3
A string line is a hand tool commonly used in construction to help the user create
a straight line between two reference points.
13
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 14
directions. Fresquez also believed that Paz was setting him up and intended to falsify
information regarding the existence of the defect. Based upon that belief, and because he
was concerned about being fined by the FRA or held responsible by Carpenter if the
defect resulted in an accident, Fresquez did not measure the defect and instead got into
his truck, drove approximately 200 feet away, and parked next to Herzog’s crew, who
were preparing to fix some other track defects.
Paz called Fresquez on his radio and again asked him if he wanted to string-line
the defect. Fresquez said to Paz, “I don’t see the point. You have already made your
decision.” Id. at 1509. According to Fresquez, this statement meant that he believed that
Paz had already decided to falsify the report regarding the defect. Paz responded by
saying, “I take that as a no.” Id. Fresquez replied, “I didn’t say no.” Id.Fresquez returned to the site of the defect and observed Paz and Herzog measuring
the defect with a string line. Fresquez asked if the two men needed help. Id. Paz said
“no, we’ll have time to argue the facts later.” Id. at 1510. Fresquez then asked Herzog if
the defect was present and Herzog said yes. Id. at 1511.
Following this incident, information was entered into the TIMS system falsely
indicating that the defect identified by Fresquez and verified by Paz and Herzog’s
measurements had been repaired that same day (May 5, 2016). It is undisputed that
neither Fresquez nor Herzog entered this information and, in fact, lacked the ability to do
so. Carpenter later conceded that the only person who could have entered this
14
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 15
information was Paz. Repairing the defect would have required shutting down up to
three separate tracks in a high-traffic location.
Paz immediately reported the string-line incident to Carpenter, who instructed Paz
to prepare a written notice of investigation. Paz did so and then messaged Fresquez and
instructed him to report to Paz’s office. When Fresquez arrived at Paz’s office, Paz
handed him the notice of investigation. The notice of investigation effectively alleged
that Fresquez had violated BNSF’s progressive disciplinary policy and was subject to
either discipline or dismissal.
BNSF’s progressive disciplinary policy was called the Policy for Employee
Performance and Accountability (PEPA). PEPA applied to all of BNSF’s scheduled (i.e.,
union) employees, including track inspectors such as Fresquez. PEPA listed three
categories of rules violations: standard, serious, and stand-alone dismissible. The charge
alleged against Fresquez in the notice of investigation, insubordination, was classified
under PEPA as a stand-alone dismissible offense.
Under the collective bargaining agreement between Fresquez’s union and BNSF
that was in place at the time, any employee who had worked for more than sixty days for
BNSF could not be disciplined or dismissed from employment until they were afforded
an investigation hearing. Investigation hearings were conducted by a member of BNSF’s
management. The charged employee was not permitted to be represented at the hearing
by an attorney, but could have a union representative present with them. BNSF paid the
15
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 16
employees that it selected to testify at the hearing, but it did not pay any employees that
were selected to testify by the charged employee.
In Fresquez’s case, an investigation hearing was held regarding the allegation of
insubordination that Paz made against him. The hearing was conducted by Everett
Percival, a BNSF management employee. Paz was the only witness to testify against
Fresquez. Prior to the hearing, Carpenter sent an email to Paz giving him detailed
instructions on how to testify at the hearing. The email included specific directions on
what to say when the hearing officer asked Paz what happened. For example, Carpenter
instructed Paz to say: “Employee refused to get tools and measure repaired track defect
when instructed to do so.” Id., Vol. VII at 1652. Carpenter also told Paz to “be firm
about your instructions being clear and direct, not light and optional.” Id. During the
hearing, Paz, consistent with the instructions from Carpenter, testified that he told
Fresquez three times to remeasure the defect. Paz also testified during the hearing that he
determined that no defect was present.
The transcript of the investigation hearing was then sent to BNSF’s PEPA team.
The PEPA team was comprised of employees who worked for BNSF’s Labor Relations
Department. A member of the PEPA team, Stephanie Detlefsen, reviewed the hearing
transcript and concluded that the evidence supported a charge of insubordination. Based
upon this conclusion, Detlefsen recommended that Fresquez be terminated from his
employment with BNSF.
16
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 17
Detlefsen’s recommendation was reviewed by Adam Miller, who at the time
served as the General Director of Line Maintenance for BNSF’s Powder River Division
and, in that role, acted as Carpenter’s direct supervisor. Miller decided to terminate
Fresquez for insubordination because “[h]e refused instruction from his supervisor.”4
Id., Vol. IX at 2377. BNSF, acting on Miller’s decision, formally terminated Fresquez
from his employment on May 27, 2016.
II. Procedural background
On April 5, 2017, Fresquez filed this action against BNSF alleging that BNSF
violated the FRSA by terminating his employment in retaliation for engaging in protected
activities under the FRSA.5 Specifically, Fresquez alleged that BNSF violated 42 U.S.C.
§ 20109(a)(1), (a)(2), and (b)(1)(A). Fresquez’s complaint sought relief in the form of
reinstatement to his position, expungement of any record of his alleged insubordination,
compensatory damages, damages for emotional distress, punitive damages, and costs and
fees.
The case proceeded to a six-day jury trial in February 2019. At the conclusion of
all the evidence, BNSF moved for judgment as a matter of law. The district court granted
4
It is undisputed that a failure to follow a supervisor’s instruction is not
considered by BNSF to be a stand-alone dismissible violation. It is also undisputed that
classifying a particular incident as insubordination or failure to follow a supervisor’s
instruction is often subjective.
5
Before initiating these federal court proceedings, Fresquez filed a complaint with
the Occupational Safety and Health Administration. See 49 U.S.C. § 20109(d)(1).
17
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 18
in part and denied in part BNSF’s motion. The district court “conclude[d] that the only
protected activity that could be a contributing factor to [Fresquez’s] termination [wa]s the
May 2016 incident,” and it consequently granted judgment as a matter of law in favor of
BNSF with respect to “the 2015 events” cited by Fresquez. Id., Vol. X at 2490. But the
district court also “order[ed] that the jury c[ould] consider the . . . 2015 events as
background” evidence. Id. The district court rejected BNSF’s argument that it had
produced clear and convincing evidence that Fresquez would have been terminated from
his employment absent engaging in protected activity under the FRSA. With respect to
the issue of damages, the district court found that Fresquez “ha[d] introduced sufficient
evidence to submit the issue of emotional damages and punitive damages to the jury.” Id.
at 2492.
The jury, after deliberating for approximately three hours, returned a verdict in
favor of Fresquez. More specifically, the jury found that Fresquez engaged in protected
activity defined by the FRSA, BNSF knew that Fresquez engaged in protected activity,
Fresquez suffered an unfavorable personnel action, and Fresquez’s engagement in
protected activity was a contributing factor to the unfavorable personnel action. The jury
also found that BNSF failed to prove by clear and convincing evidence that it would have
taken the same personnel action against Fresquez even if he had not engaged in any
18
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 19
protected activity.6 The jury found that Fresquez had proven by a preponderance of the
evidence that he should be awarded compensatory damages for emotional distress, pain,
suffering, inconvenience, or mental anguish, and it found the amount of such damages to
be $800,000. Lastly, the jury found that Fresquez had proven by a preponderance of the
evidence that BNSF acted with reckless or callous disregard of his right to be free from
retaliation for engaging in protected activity, and it awarded Fresquez $250,000 in
punitive damages.
The jury was not asked to determine back pay or front pay because the district
court determined that those were equitable remedies that it would decide. After the jury
returned its verdict, the district court encouraged the parties to attempt to reach an
agreement on the issues of back pay and front pay and, if necessary, to request a hearing
on those issues. The parties were unable to reach an agreement.
Due to the parties’ failure to reach an agreement, Fresquez moved for an award of
back pay and front pay. After holding an evidentiary hearing on the motion, the district
court ultimately granted the motion in part and awarded Fresquez “a total tax-adjusted
6
Due to an error on the original verdict form, the jury originally returned
conflicting responses, finding in particular that BNSF had proven by clear and
convincing evidence that it would have taken the same personnel action against Fresquez
even if he had not engaged in any protected activity. The district court and the parties
agreed that the instructions and verdict form should be corrected and that the jury should
be sent back to deliberate. Upon deliberating the second time, the jury returned the
verdicts described herein. After the jury returned that verdict, BNSF moved for a
mistrial, but the district court denied that motion. BNSF does not challenge that ruling in
its appeal.
19
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 20
award of back pay, front pay, and prejudgment interest through December 17, 2019 of
$696,173.” Id., Vol. III at 681. The district court in turn directed the clerk of the district
court to “enter judgment in favor of [Fresquez] . . . in the principal amount of
$1,746,173—comprised of $696,173 for back pay, front pay, and prejudgment interest;
$800,000 in compensatory damages; and $250,000 in punitive damages—with
postjudgment interest at the federal statutory rate.” Id.Final judgment in the case was entered on December 17, 2019.
On January 14, 2020, BNSF filed a renewed motion for judgment as a matter of
law, a motion for new trial, and a motion to alter or amend the judgment. BNSF argued,
in pertinent part, that Fresquez failed to demonstrate that he engaged in protected activity
under the FRSA, that the decisionmakers knew about his alleged protected activity, or
that any protected activity contributed to his termination. BNSF further argued that it
demonstrated by clear and convincing evidence that it would have fired Fresquez absent
any protected activity (the same-decision defense). BNSF also argued that it was entitled
to judgment as a matter of law, or a new trial, on the issue of compensatory and punitive
damages. Finally, in its motion to alter or amend the judgment, BNSF challenged various
aspects of the district court’s award of front pay.
On March 8, 2021, the district court issued separate orders denying BNSF’s
motions. The district court also awarded Fresquez $44,910 in attorneys’ fees and
$1,341.75 in costs. Id. at 901.
BNSF thereafter filed a timely notice of appeal.
20
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 21
III. Analysis
BNSF asserts six issues on appeal. First, BNSF argues that it is entitled to
judgment as a matter of law because Fresquez failed to prove any actionable protected
activity. Second, BNSF argues that it is entitled to judgment as a matter of law because it
proved its same-decision defense. Third, BNSF argues that it is entitled to a new trial
based on the district court’s erroneous admission of character and other prejudicial
evidence. Fourth, BNSF argues that the district court abused its discretion in denying
BNSF’s request for a new trial or, in the alternative, a substantial remittitur of the
compensatory damages award. Fifth, BNSF argues that it is entitled to judgment as a
matter of law with respect to the issue of punitive damages. Finally, BNSF argues that
the district court abused its discretion by awarding Fresquez ten years’ worth of front
pay. As we shall proceed to explain, we find no merit to any of these issues and therefore
affirm the judgment of the district court.
A. Is BNSF entitled to judgment as a matter of law on the merits of Fresquez’s claims
because he failed to prove that he engaged in any actionable protected activity
and/or because BNSF proved its same-decision defense?
In its first two issues on appeal, BNSF argues that it is entitled to judgment as a
matter of law on the merits of Fresquez’s FRSA claim because Fresquez failed to prove
at trial that he engaged in any actionable protected activity, and, even if Fresquez proved
that he engaged in actionable protected activity, BNSF proved its same-decision defense.
For the reasons that follow, we reject BNSF’s arguments and conclude that BNSF is not
entitled to judgment as a matter of law.
21
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 22
1. Standard of review
We review de novo a district court’s denial of a motion for judgment as a matter of
law, applying the same standards as the district court. Bimbo Bakeries USA, Inc. v.
Sycamore, 29 F.4th 630, 640 (10th Cir. 2022). A court may enter judgment as a matter of
law only when the nonmovant has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for the nonmovant on that issue.
Id. In reviewing a district court’s denial of a motion for judgment as a matter of law, we
draw all reasonable inferences in favor of the nonmoving party, and we will reverse the
district court only if the evidence points but one way and is susceptible to no reasonable
inferences supporting the nonmovant. Id. at 641.
2. The evidentiary burdens in an FRSA case
Section 20109 of the FRSA, entitled “Employee protections,” provides, in
pertinent part, as follows:
(a) In general.--A railroad carrier . . . may not . . . discriminate against an
employee if such discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by the employer to
have been done or about to be done--
(1) to provide information, directly cause information to be provided, or
otherwise directly assist in any investigation regarding any conduct
which the employee reasonably believes constitutes a violation of any
Federal law, rule, or regulation relating to railroad safety or security
. . . , if the information or assistance is provided to or an investigation
stemming from the provided information is conducted by--
(A) a Federal, State, or local regulatory or law enforcement agency
...,
22
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 23
(B) any Member of Congress, any committee of Congress, or the
Government Accountability Office; or
(C) a person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(2) to refuse to violate or assist in the violation of any Federal law, rule,
or regulation related to railroad safety or security . . . .
(b) Hazardous safety or security conditions.--(1) A railroad carrier engaged in
interstate or foreign commerce, or an officer or employee of such a railroad
carrier, shall not discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee for--
(A) reporting, in good faith, a hazardous safety or security condition . . . .
49 U.S.C. § 20109(a)(1) and (2), (b)(1)(A).
Section 20109(d) authorizes a railroad “employee who alleges discharge,
discipline, or other discrimination in violation of subsection (a) . . . [or] (b)” of § 20109
to file an enforcement action with the Secretary of Labor. Id. § 20109(d)(1). An
enforcement action that is filed by a railroad employee under § 20109(d)(1) “shall be
governed under the rules and procedures set forth in [49 U.S.C. §] 42121(b), including
. . . the legal burdens of proof.” Id. § 20109(d)(2)(A)(i).
Under the burden-shifting framework outlined in § 42121(b), the employee has
“the initial burden . . . to establish a prima facie case by showing that (1) the employee
engaged in a protected activity [i.e., one of the activities outlined in § 20109(a) or (b)];
(2) the employer knew that the employee engaged in the protected activity; (3) the
employee suffered an unfavorable personnel action; and (4) the protected activity was a
23
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 24
contributing factor in the unfavorable action.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166,
1212 (10th Cir. 2018) (quotation marks omitted). “The absence of probative evidence as
to any single element necessary to establish a prima facie claim terminates the action.”
Id. (quotation marks omitted). If the employee establishes a prima facie case, “the
burden switches to the employer to demonstrate ‘clear and convincing evidence that the
employer would have taken the same unfavorable personnel action in the absence of [the
employee’s protected activity].’” BNSF Ry. Co. v. U.S. Dep’t of Lab., 816 F.3d 628, 638
(10th Cir. 2016) (quoting 49 U.S.C. § 42121(b)(2)(B)(iv)).
3. Did Fresquez prove he engaged in actionable protected activity?
BNSF argues, in part, that Fresquez’s interactions “on his last day of work . . . do
not support a showing” that he engaged in “any FRSA protected activity that could
support the judgment.” Aplt. Br. at 14. That is because, BNSF asserts, “the conduct was
not protected at all, the decisionmaker was unaware of it, or the conduct was exclusively
governed by a different FRSA section that imposes special requirements that Fresquez
admitted he could not satisfy.” Id.For us to fully address BNSF’s arguments, it is necessary to briefly revisit the
procedural history of this case in terms of what protected activity Fresquez alleged, what
BNSF alleged in response, and what activity the district court ultimately limited the jury
to consider. Prior to and during the course of the trial, Fresquez alleged that he engaged
in three types of statutorily-protected activity during 2015 and 2016: (1) he lawfully
provided information to the FRA regarding conduct that he reasonably believed
24
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 25
constituted a violation of federal laws or regulations relating to railroad safety; (2) he
lawfully refused to violate or assist in violating any federal law or regulation relating to
railroad safety (by, for example, refusing to reclassify a defect); and (3) he reported to
BNSF the existence of a hazardous safety condition.
At the summary judgment stage, BNSF did not dispute that refusing to reclassify a
defect was a protected activity. BNSF also did not dispute that Detlefsen and Miller, the
two BNSF employees who decided to terminate Fresquez’s employment following the
investigation hearing, were aware that Fresquez alleged that on May 5, 2016, Paz asked
him to reclassify the defect and Fresquez refused to do so.
In the final pretrial order, which was issued after the district court denied BNSF’s
summary judgment motion, Fresquez alleged that he had “long suspected that” Carpenter
“and some of the supervisors under Carpenter were circumventing federal regulations
regarding when damaged track needed to be taken out of service or have the speed limit
on them reduced.” Aplt. App., Vol. I at 64–65. Fresquez in turn alleged that, after he
began objecting to this “circumvention of the federal regulations regarding rail safety,”
Paz instructed him to appear at the site of a defect that Fresquez had identified, “told
Fresquez that he could not see the damage, and suggested that his inability to see the
damage with his naked eye meant the track did not need to be reported as damaged.” Id.
at 65. “When [he] objected,” Fresquez alleged, “Paz responded by asking [him] whether
he wanted to re-measure the track to see if the damage was still there, as though there was
a chance the rail may have magically fixed itself.” Id.25
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 26
BNSF, for its part, alleged in the final pretrial order that Fresquez failed to
“plead[] the correct protected activity.” Id. at 69. Specifically, BNSF alleged that the
provisions of § 20109(b)(1)(B) and (C) applied to the protected activity alleged by
Fresquez, rather than “the more general provisions of [§] 20109(a)(1), (a)(2), and
(b)(1)(A),” but that Fresquez “never pleaded a [§] 20109(b)(1)(B) claim.” Id.
In its renewed motion for judgment as a matter of law filed at the conclusion of all
the evidence, BNSF argued, in part, that Fresquez had failed to provide the jury with “a
legally sufficient evidentiary basis” to find “either that the BNSF decision-makers knew
that he engaged in protected activity under the cited sections of the FRSA, or that BNSF
intentionally retaliated against [Fresquez] by terminating him in whole or in part due to
his protected activity.” Id. at 195. In support, BNSF argued, in relevant part:
Plaintiff next claims that he engaged in protected activity in May of 2016
when he objected to the alleged suggestion of Michael Paz, then his
Roadmaster, that a non-class specific defect be changed to a class-specific
defect so that it did not need to be taken out of service, and when he contacted
the Federal Railroad Administration . . . to confirm that the track should be
taken out of service. Initially, while Plaintiff attempts to re-frame these
activities as an objection to an illegal activity, what he is really asserting is
retaliation for taking a track out of service, which Plaintiff did not plead and
disclaimed any intent to rely on.
Id. at 202.
Finally, it appears that Plaintiff is now arguing that he engaged in protected
activity when he refused to string-line the track during the insubordination
incident. Plaintiff’s latest theory is that he wouldn’t measure the track
because he believed Mr. Paz was going to remove the defect regardless of
whether he measured it, and Mr. Paz “‘could attach his name to the defect’s
dangerous and illegal removal from the system.’” [ECF 137 at p.3]. . . .
[T]his incident does not demonstrate protected activity as it is not disputed
26
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 27
that it was safe to measure the track, and if Plaintiff really believed Mr. Paz
wanted to illegally remove the defect he would have taken the measurement
in the presence of a third party to prove it was there.
Id. at 202–03 (citation and footnote omitted).
The district court granted in part and denied in part BNSF’s renewed motion for
judgment as a matter of law. Specifically, the district court agreed with BNSF that
Fresquez failed to “demonstrate[] that his alleged protected activity” in 2015 “contributed
to his termination.” Id., Vol. X at 2485. The district court noted in support that “[t]here
[wa]s no evidence that . . . Miller and . . . Detlefsen,” the two decisionmakers, “knew of
any protected activity in May or June of 2015.” Id. at 2487. The district court
“conclude[d] that the only protected activity that could be a contributing factor to
plaintiff’s termination [wa]s the . . . incident that occurred on or about May 5th, 2016.”
Id. at 2490. The district court noted that “[t]he May 2016 incident with Paz occurred on
the same day plaintiff was removed from work, and there [wa]s evidence to support
plaintiff’s claim that the conflict with Paz led to his termination.” Id. The district court
“therefore grant[ed] defendant’s motion for judgment as a matter of law as to the 2015
events not being protected activity, but den[ied] it as to the May 2016 incident.” Id. The
district court also “order[ed] that the jury c[ould] consider the . . . 2015 events as
background.” Id.
The district court, in its instructions to the jury, noted that “Fresquez allege[d] that
BNSF terminated him in retaliation for engaging in activity protected under the Federal
27
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 28
Railroad Safety Act, 49 U.S.C. § 20109.” Id., Vol. I at 263 (Instruction No. 2). The
district court in turn instructed the jury as follows:
An employee engages in protected activity as defined by the FRSA if
the employee, in good faith, commits an act, or the employer perceives the
employee to have committed an act or to be about to commit an act
1. to lawfully provide information, directly cause information to be
provided, or directly assist in any investigation regarding any conduct
which the employee reasonably believes constitutes a violation of any
Federal law, rule, or regulation relating to railroad safety if the
information is provided to an employee’s supervisor or the FRA; or
2. to lawfully refuse to violate or assist in violating any Federal law,
rule, or regulation relating to railroad safety or security; or
3. to report a hazardous safety or security condition.
Id. at 277.
As noted, the jury returned a verdict in favor of Fresquez. On the verdict form, the
jury found that: Fresquez had proven by a preponderance of the evidence that he engaged
in a protected activity as defined by the FRSA; BNSF knew Fresquez engaged in the
protected activity; Fresquez suffered an unfavorable personnel action; and the protected
activity was a contributing factor in the unfavorable personnel action.
After the district court entered final judgment in favor of Fresquez, BNSF filed a
written post-trial motion for judgment as a matter of law arguing, in pertinent part, that
Fresquez “did not invoke § 20109(b)(1)(B) or (b)(1)(C) . . . because they are subject to
special, more stringent requirements, set out in § 20109(b)(2)” and his “counsel admitted
he would be unable to prove these latter requirements and expressly disclaimed any intent
to invoke these sections of the FRSA as protected activity.” Id., Vol. III at 686 (emphasis
omitted). BNSF in turn argued that the trial court “therefore ruled that [Fresquez’s]
28
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 29
refusal to work on May 5, 2016” was ‘not a protected activity that [he] [wa]s trying to
prove’” under §§ 20109(b)(1)(B) or (b)(1)(C) and he thus could not “‘argue [that] taking
tracks out of service [wa]s a protected activity’” under those sections of the FRSA. Id.
(quoting Trial Tr., Vol. VI at 1393). Nevertheless, BNSF argued that Fresquez’s “claims
were in fact premised on taking tracks out of service and refusing to work, and the jury
therefore erred in determining [Fresquez] engaged in protected activity within the
meaning of the FRSA provisions that were actually invoked.” Id.
The district court denied BNSF’s post-trial motion for judgment as a matter of
law. In doing so, the district court stated:
[A]s [the court] held on summary judgment, Fresquez alleged several
activities that are protected activities under the subsections of the statute that
he did invoke, including that he “refused to reclassify a defect on May 5.”
(ECF No. 83 at 11 (citing 49 U.S.C. § 20109(a)(2) (protected activity
includes ‘refus[ing] to violate the law or assist in the violation of any Federal
law, rule or regulation.’)).)
The jury heard Fresquez’s testimony that he tried, in his role as a track
inspector, to take a track out of service on May 5, 2016 because a track defect
originally reported in March 2016 had not been repaired within thirty days,
as required by federal regulations. (Trial. Tr. II at 461.) His boss, Michael
Paz, tried to get him to report the defect as a slow-order defect, which would
allow BNSF to keep the track in service with a reduced speed limit. (Id. at
461–63.) Fresquez called the Federal Railroad Administration (“FRA”) to
verify that BNSF cannot change the nature of a reported defect as it sees fit,
which the FRA confirmed. (Id. at 462) Thereafter, Fresquez alluded to the
fact that he had called the FRA in a conversation with Paz. (Id. at 463–64.)
In response, Paz told Fresquez that he had Mark Carpenter (his supervisor)
on his side and that they do not lose. (Id. at 464.) Paz also referenced a
different employee who was fired, stating, “I’ll pull a Ryan Akers, walk
behind you and find 8 missing [rail] clips and fire you.” (Id.) Fresquez
understood this to be a reference to following employees and waiting until
they violate a rule to fire them. (Id. at 465.)
29
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 30
Shortly thereafter, Paz called Fresquez to a location in south Denver
to measure an alignment defect in the track that was first found in 2014. (Id.
at 472.) When Fresquez arrived at the location, Paz and Jay Herzog were
already there. (Id. at 473.) Paz asked Fresquez to measure the defect, even
though the alignment defect is not the kind of defect that can be seen with
the naked eye. (Id. at 475.) Fresquez believed that Paz was trying to get him
to measure the defect and falsely mark the defect as repaired. (Id. at 476.)
Fresquez believed that the defect was “going to be removed from the system
[no] matter what,” but he did not want to participate in falsifying the defect
because he could be personally fined. (Id. at 476–77.) Not wanting to
participate in Paz’s request, which he believed to be a setup, Fresquez left.
(Id. at 476–78) When Fresquez later went back to the alignment defect and
offered to measure it, he was told it was too late. (Id. at 483.)
BNSF argues that Fresquez has not proven a violation of
§ 20109(a)(2) because “Plaintiff cites no authority for the prospect that
changing a non-class[]specific defect to a class-specific defect violates any
federal law if it was improperly characterized in the first place, which is what
Plaintiff’s supervisor asked him to consider.” (ECF No. 209 at 6 (citing Trial
Tr. III at 696–98).) However, in drawing all reasonable inferences in favor
of Fresquez, a reasonable jury could conclude that: (1) Paz’s request to
Fresquez on May 5, 2016 to report the defect as a slow-order defect rather
than taking the track out of service violated the law; and (2) Fresquez
engaged in protected activity by refusing to reclassify the defect. See
Rookaird v. BNSF Ry. Co., 908 F.3d 451 (9th Cir. 2018) (there was sufficient
evidence supporting finding that railroad conductor refused, in good faith, to
violate railroad safety rule or regulation even though trainmaster did not
explicitly direct conductor to stop performing air-brake test, in light of
evidence that trainmaster questioned air-brake test’s necessity while
conductor and his crew were performing test).
Thus, the Court cannot conclude that the overwhelming weight of the
evidence favors BNSF to such an extent that it can find that Fresquez did not
engage in protected activity. The Court therefore denies this portion of
BNSF’s Rule 50(b) motion.
Aplt. App., Vol. III at 871–73.
30
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 31
Having outlined the relevant procedural history of BNSF’s motion, we now turn to
the evidence that Fresquez presented at trial that pertains to his engagement in potentially
protected activities. Fresquez presented evidence, much of it by way of his own
testimony, establishing that the following events occurred on May 5, 2016, the day he
was charged with insubordination:
• During the first part of the day, Fresquez discovered a non-class specific
defect, specifically a broken tie, that he had previously identified in
February 2016. Id., Vol. VI at 1486–88. When he first identified the
defect in February 2016, Fresquez wanted to place a ten-mile-per-hour
limit on the portion of track containing this defect, but Paz preferred to
treat it as a class defect, which allowed trains to continue to run at regular
speed over the track for a period of thirty days. Id. at 1487. On May 5,
2016, Fresquez determined that the defect still existed and had not been
repaired, so he concluded that the track needed to be taken out of service.
Id. at 1488–89. Paz, however, wanted Fresquez to reclassify the defect
so that trains could continue to run at full speed over the track containing
the defect. Id. at 1489. Fresquez told Paz he was going to “call [his]
friends in high places,” meaning he was going to call the FRA. Id. That
concluded the conversation regarding the defect. Id.• After concluding the conversation with Paz, Fresquez called an FRA
agent he knew and described what had occurred regarding the defect. Id.
at 1490. The FRA agent confirmed that Fresquez was correct regarding
how the defect should be handled and that Fresquez could not reclassify
the defect as Paz wanted him to do. Id. After talking to the FRA agent,
Fresquez called Paz and they negotiated to fix the defect at issue. Id. at
1491. During the conversation, Fresquez said to Paz, “Admit that you are
falsifying reports, the defects.” Id. Paz admitted to doing so. Id. Paz in
turn stated, “We’ll work on it,” and “We have to find a happy meeting
place.” Id. Paz also stated that he had Carpenter on his side and that
“they don’t lose.” Id. at 1492. Fresquez interpreted this statement to
mean that Carpenter and Paz were going to continue doing what they had
been doing with regard to defects. Id. Lastly, Paz told Fresquez during
the call, “I’ll pull a Ryan Akers, walk behind you and find 8 missing [rail]
clips and fire you.” Id. Fresquez understood this to mean that Paz would
31
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 32
follow him while on duty, wait until he observed Fresquez violating a
rule, and then fire him. Id. at 1493.
• Following the incidents described above, Fresquez discovered another
defect that he had identified in February 2016, but had not been repaired
and had been removed from the TIMS system. Id. at 1494. Per the FRA’s
regulations, this defect required Fresquez to slow down the trains
operating over the track containing the defect. Id. Consequently,
Fresquez called the dispatcher and told him what action he was taking
with regard to the track. Id. Approximately twenty minutes after placing
the slow order on the track, Fresquez received a call from Paz directing
him to meet at the site of the defect. Id. at 1498. Fresquez and Paz then
met at the site of the reported defect. Id. at 1501. Also present on-site
was Jay Herzog, a BNSF foreman, and Herzog’s repair crew. Id.Paz stated that he did not see the defect that Fresquez had identified. Id.
at 1503. Fresquez responded and said that the defect was not the type
that could simply be seen and instead it had to be measured. Id. Paz
asked Fresquez to measure the defect with a string-line. Id. at 1504.
Fresquez believed that Paz was setting him up and intended to falsify
information regarding the defect. Id. at 1503, 1504. Based upon that
belief, and because he was concerned about being fined by the FRA
and/or held responsible by Carpenter if the defect resulted in an accident,
Fresquez did not measure the defect and instead got into his truck, drove
approximately 200 feet away, and parked next to Herzog’s crew who
were preparing to fix some other track defects. Id. at 1504–05. Paz
called Fresquez on his radio and asked him if he wanted to string-line the
defect. Id. at 1506. Fresquez said to Paz, “I don’t see the point. You
have already made your decision.” Id. at 1509. According to Fresquez,
this statement meant that he believed that Paz had already decided to
falsify the report regarding the defect. Id. Fresquez also believed that
federal law afforded him the right to decline because he believed that
what Paz was doing was illegal. Id. at 1510. Paz responded by saying,
“I take that as a no.” Id. at 1509. Fresquez replied, “I didn’t say no.”
Id.Fresquez returned to the site of the defect and observed Paz and Herzog
measuring the defect with a string line. Id. at 1510. Fresquez asked if
the two men needed help. Id. Paz said “No, we’ll have time to argue the
facts later.” Id. at 1510–11. Fresquez then asked Herzog if the defect
was present and Herzog said yes. Id. at 1511.
32
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 33
Someone entered information into the TIMS system indicating that the
defect that Fresquez had observed, and that was confirmed by the
measurements of Herzog and Paz, had been repaired that same day (May
5, 2016). Id., Vol. VII at 1702. It is undisputed that neither Fresquez
nor Herzog entered this information and, in fact, could not have done so.
Id. at 1701–02. Carpenter conceded that the only person who could have
entered this information was Paz. Id. at 1703. The information that was
entered into the TIMS system regarding this defect was false.
Specifically, it was untrue that the defect had been repaired. Id. at 1832.
In fact, repairing the defect would have been a major undertaking
because it would have required shutting down possibly three tracks in a
high-traffic location. Id. at 1834. And, to Herzog’s knowledge, the
defect has never been repaired. Id. at 1838.
We conclude, contrary to BNSF’s arguments on appeal, that this evidence would
have allowed the jury to reasonably find that on May 5, 2016, Fresquez engaged in five
distinct protected activities covered by § 20109. First, the jury could have reasonably
found that Fresquez reported to Paz, in good faith, the existence of a continuing
hazardous safety condition, i.e., a non-class specific track defect located in downtown
Denver that had been previously identified but never repaired, and that required a section
of track to be taken out of service. This protected activity would have fallen within the
scope of § 20109(b)(1)(A).
Second, the jury could have reasonably found that during his conversation with
Paz regarding the non-class specific track defect in downtown Denver, Fresquez also
provided Paz, who was his direct supervisor, with information indicating that Fresquez
was aware that Paz was seeking to violate federal law or regulations by reclassifying the
33
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 34
defect rather than repairing it in a timely fashion. This protected activity would have
fallen within the scope of § 20109(a)(1)(C).7
Third, the jury could have reasonably found that Fresquez’s refusal to reclassify
the non-class specific defect, as requested by Paz, amounted to a “refus[al] to violate or
assist in the violation of any Federal law, rule, or regulation relating to railroad safety or
security,” as outlined by § 20109(a)(2).
Fourth, the jury could have reasonably found that Fresquez provided information
to an FRA agent regarding conduct that Fresquez reasonably believed constituted a
violation of federal law or regulations relating to railroad safety, i.e., that Paz wanted him
to reclassify the non-class specific defect, rather than repairing the defect, so that trains
could continue to run on the track where the defect was located. This protected activity
would have fallen within the scope of § 20109(a)(1)(A).
Fifth, the jury could have reasonably found that Fresquez acted in good faith when
he refused to help Paz measure the second track defect that Fresquez had identified that
day because Fresquez reasonably believed that Paz was attempting to have Fresquez
assist him in covering up, or otherwise falsifying information about, the existence of the
defect. This protected activity would have fallen within the scope of § 20109(a)(2).
7
Nothing in the plain text of § 20109(a)(1)(C) indicates that the provision is not
violated if the employee reports the information to the “person with supervisory authority
over the employee,” and that same person, i.e., the one with supervisory authority over
the reporting employee, is also the one responsible, or potentially responsible, for the
violation of federal law or regulations.
34
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 35
4. BNSF’s remaining arguments
BNSF makes a host of arguments aimed at attempting to establish that none of the
above-listed activities were in fact protected activities under § 20109. For the reasons
outlined below, we conclude that BNSF’s arguments all lack merit.
a) Refusing to reclassify
BNSF argues that Fresquez’s conduct on May 5, 2016, in “[r]efusing to reclassify
the track” defect as requested by Paz “is not actionable” under § 20109(a)(2) because it
“is exactly the conduct covered by subparagraph (b)(1)(C).” Aplt. Br. at 22. In other
words, BNSF argues that “the district court should have required [Fresquez] to meet . . .
the more stringent requirements of subparagraph (b)(1)(C) and paragraph (b)(2),” rather
than allowing Fresquez to rely on § 20109(a)(2). Id. The district court’s “failure to do
so,” BNSF argues, “was an error of law.” Id.
To resolve BNSF’s arguments, we turn to the statutory text. Section 20109(a)(2),
as we have noted, provides, in relevant part, that a railroad
may not discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee if such discrimination is due, in whole or
in part, to the employee’s lawful, good faith act done . . . to refuse to violate
or assist in the violation of any Federal law, rule, or regulation relating to
railroad safety or security.
49 U.S.C. § 20109(a)(2).
In turn, § 20109(b), which is entitled “Hazardous safety or security conditions,”
provides, in pertinent part, as follows:
35
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 36
(1) A railroad carrier . . . shall not discharge, demote, suspend, reprimand, or in
any other way discriminate against an employee for--
....
(C) refusing to authorize the use of any safety-related equipment, track, or
structures, if the employee is responsible for the inspection or repair of the
equipment, track, or structure, when the employee believes that the
equipment, track, or structures are in a hazardous safety or security condition,
if the conditions described in paragraph (2) exist.
(2) A refusal is protected under paragraph [(1)(C)] if--
(A) the refusal is made in good faith and no reasonable alternative to the
refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the
employee would conclude that--
(i) the hazardous condition presents an imminent danger of
death or serious injury; and
(ii) the urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of the
existence of the hazardous condition and the intention not to perform
further work, or not to authorize the use of the hazardous equipment,
track, or structures, unless the condition is corrected immediately or
the equipment, track, or structures are repaired properly or replaced.
49 U.S.C. § 20109(b)(1)(C), (b)(2).
Both § 20109(a)(2) and § 20109(b)(1)(C) reflect a general congressional concern
for railroad safety and security. But the purpose of each section is different. Section
20109(a)(2), by its plain text, protects railroad employees who “refuse to violate or assist
in the violation of any Federal law, rule, or regulation relating to railroad safety or
security.” 49 U.S.C. § 20109(a)(2). Section 20109(b)(1)(C), in contrast, protects railroad
employees who refuse to authorize the use of equipment, track, or structures when those
36
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 37
employees “believe[] that the equipment, track, or structures are in a hazardous safety or
security condition.”8 49 U.S.C. § 20109(b)(1)(C).
Notably, Congress has imposed what the Eighth Circuit has characterized as a
“reasonableness requirement” on railroad employees seeking protection under
§ 20109(b)(1)(C), but not on those railroad employees seeking protection under
§ 20109(a)(2). See Monohon v. BNSF Ry. Co., 17 F.4th 773, 780–81 (8th Cir. 2021)
(discussing § 20109(b)(1)(B)). To be entitled to protection under § 20109(b)(1)(C), a
railroad employee must demonstrate that his or her refusal to authorize the use of
equipment, track, or structures was “made in good faith and no reasonable alternative to
the refusal [wa]s available to the employee,” 49 U.S.C. § 20109(b)(2)(A), and that
a reasonable individual in the circumstances then confronting the employee
would conclude that--
(i) the hazardous condition present[ed] an imminent danger of death or
serious injury; and
(ii) the urgency of the situation d[id] not allow sufficient time to eliminate
the danger without such refusal . . . .
Id. § 20109(b)(2). This “reasonableness requirement” functions to prevent railroad
employees from prevailing on a § 20109(b)(1)(C) claim based purely on their own
subjective opinion that the equipment, track, or structures at issue were in a hazardous
safety or security condition.
8
Section 20109(b)(1)(B) is similar in that it protects railroad employees who
“refus[e] to work when confronted by a hazardous safety or security condition related to
the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(1)(B).
37
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 38
Presumably, Congress did not impose a similar reasonableness requirement on
railroad employees seeking protection under § 20109(a)(2) because that section already
effectively incorporates an objective standard of proof. Specifically, an employee
seeking protection under § 20109(a)(2) must establish that they were asked or directed to
“violate or assist in the violation of” a specific “Federal law, rule, or regulation relating to
railroad safety or security.” Section 20109(b)(1)(C), in contrast, does not require any
such proof. In other words, an employee seeking protection under § 20109(b)(1)(C) does
not have to establish that the perceived “hazardous safety or security condition”
constitutes or arises out of a violation of any “Federal law, rule, or regulation relating to
railroad safety or security.” Id. § 20109(a)(2). Instead, as noted, they must establish the
objective reasonableness of their safety or security concern.
Although it is easy to imagine circumstances that implicate only one or the other
of these two statutory provisions, BNSF argues that the case at hand presents
circumstances that implicate both statutory provisions. And BNSF in turn argues that, in
circumstances such as this, the railroad employee must proceed only under
§ 20109(b)(1)(C). This is so, BNSF asserts, because § 20109(b)(1)(C) imposes “more
stringent” or “heightened” requirements than does § 20109(a)(2). Aplt. Br. at 22.
We reject BNSF’s arguments. To begin with, we are not persuaded that
§ 20109(b)(1)(C)’s objective reasonableness requirement is “more stringent” than
§ 20109(a)(2)’s requirement that the railroad employee establish that they were asked or
directed to “violate or assist in the violation of any Federal law, rule, or regulation
38
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 39
relating to railroad safety or security.” Further, even if we were to assume that
§ 20109(b)(1)(C)’s objective reasonableness requirement is more stringent, nothing in
§ 20109 indicates Congress’s intent for § 20109(b)(1)(C) to preempt or override
§ 20109(a)(2) in circumstances where both provisions are implicated. In other words, a
reading of § 20109 leads us to conclude that in circumstances where both provisions are
implicated, the railroad employee is free to pursue an action under either provision or
both provisions.
Here, Fresquez clearly alleged, and ultimately proved at trial, circumstances that
fell within the scope of § 20109(a)(2). Thus, even if those circumstances also fell within
the scope of § 20109(b)(1)(C), it was not error on the part of the district court to refuse to
require Fresquez to allege and prove that BNSF violated § 20109(b)(1)(C).
b) Calling the FRA
BNSF next argues that Fresquez’s conduct in calling the FRA agent on May 5,
2016, should be treated “as part and parcel of” his conduct in refusing to reclassify the
defect. Aplt. Br. at 25. In support, BNSF argues that “[t]he only purpose of the call was
to ask whether Fresquez could issue a slow order on the track so as to authorize its use.”
Id. Although BNSF is essentially correct about the purpose of Fresquez’s call to the FRA
agent, i.e., Fresquez called the FRA agent to confirm his own conclusion that
reclassifying the track would violate federal regulations, BNSF is clearly wrong in
suggesting that the call was indistinct from Fresquez’s action in refusing to reclassify the
39
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 40
defect. In fact, the two actions were factually distinct and, in turn, fell within the scope
of two different subsections of § 20109(a).
BNSF also argues that calling the FRA agent “does not fit under [§] 20109(a)(2)
because it did not constitute refusing to violate or assist in violating any federal law.” Id.
BNSF’s argument is correct as far as it goes. But it ignores the key point that Fresquez’s
call to the FRA agent actually constitutes a protected activity under § 20109(a)(1), i.e.,
providing information “regarding any conduct which the employee reasonably believes
constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or
security” to “a Federal . . . regulatory . . . agency.” 49 U.S.C. § 20109(a)(1)(A).
Although BNSF points to a portion of Fresquez’s cross-examination where he stated that
he never reported any misconduct by any BNSF manager to the FRA, the fact remains
that, according to Fresquez’s testimony on direct examination, he called the FRA agent,
they “talked about the situation at hand” and the FRA agent “said, Yes, you are correct,
. . . you can’t reclassify a defect.” Aplt. App., Vol. VI at 1490. Based upon this
testimony, the jury could have reasonably inferred that Fresquez informed the FRA agent
that Paz asked him to reclassify the defect and thereby provided the FRA agent with
information regarding “conduct which [Fresquez] reasonably believe[d] constitute[d] a
violation of any Federal law, rule, or regulation relating to railroad safety.” 49 U.S.C.
§ 20109(a)(1).
Finally, BNSF argues that “[t]here is an additional problem” regarding Fresquez’s
call to the FRA agent. Aplt. Br. at 26. BNSF notes that at trial, “Fresquez argued that
40
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 41
Paz and Carpenter were decisionmakers on the theory that Paz reported the incident that
led to the investigation, Carpenter chose to initiate the investigation with a charge of
insubordination . . . , and Paz lied at the investigation hearing.” Id. at 26–27. BNSF
disagrees with this contention and asserts that it is undisputed that Detlefsen and Miller
were the independent decisionmakers and “[t]hat in fact is what [the district court] ruled
as a matter of law.” Id. at 27. BNSF complains, however, that the district court “then
refused to instruct the jury according to that ruling, which allowed Fresquez’s counsel to
argue that Paz and Carpenter were decisionmakers.” Id. (citation omitted). BNSF argues
that “[t]his Court need not reach that question, however,” because, “[e]ven assuming that
Paz or Carpenter were decisionmakers[,] there is no evidence they had knowledge of the
claimed protected activity of [Fresquez] [c]alling the FRA—and more importantly[,] of
any contents of that call that would place it within the statutory provision.” Id. at 28.
To the extent BNSF is attempting to challenge the district court’s refusal to
instruct the jury regarding his ruling on who the decisionmakers were, BNSF has not
raised that as a distinct issue on appeal, and, as noted, essentially disclaims this issue.
Consequently, we summarily reject it.
As for BNSF’s argument regarding Paz’s and Carpenter’s knowledge of
Fresquez’s phone call to the FRA agent, Fresquez’s testimony on direct examination is
relevant. Fresquez testified that on the morning of May 5, 2016, he initially texted Paz
and told him he was going to “take the track out of service” due to the existence of the
defect, and that he and Paz “ended up talking on the phone” about it. Aplt. App., Vol. VI
41
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 42
at 1489. Fresquez testified that Paz “want[ed] [him] to change it to a class-specific
defect, which [would have] mean[t] [that Paz could] run the trains at full speed” on the
track. Id. Fresquez then testified: “I t[old]him I was going to call the FRA. Well, I said,
Let me call my friends in high places,” and that they “end[ed] the conversation.” Id.Based upon this testimony, in combination with the other evidence presented at trial (e.g.,
regarding Fresquez’s history of working with Paz), the jury could have reasonably
inferred that Paz knew who Fresquez intended to call when he referred to “friends in high
places.” The jury also could have reasonably inferred that this action by Fresquez could
have played a role in Paz deciding later that same day to report Fresquez’s conduct to
Carpenter, and in turn could have played a role in Carpenter choosing to charge Fresquez
with insubordination.
c) Refusing to measure
BNSF argues that Fresquez’s refusal to measure the track on May 5, 2016 “is not
actionable protected activity” for two reasons. Aplt. Br. at 30. First, BNSF argues that
this conduct fell within the scope of § 20109(b)(1)(B), which applies when a railroad
employee “refu[ses] to work when confronted by a hazardous safety or security condition
related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(1)(B).
Therefore, BNSF argues, Fresquez was precluded from claiming that the conduct fell
within the scope of § 20109(a)(2). We reject BNSF’s argument for the same reasons
discussed above regarding Fresquez’s refusal to reclassify the defect found on the
morning of May 5, 2016. In short, whether or not Fresquez’s refusal to measure the track
42
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 43
constitutes a violation of § 20109(b)(1)(B), it clearly fell within the scope of
§ 20109(a)(2) and nothing in § 20109 required Fresquez to allege anything beyond or
other than that specific violation.
BNSF in turn argues that “measuring the track would be in no way a violation of
the law” and instead “was the normal expected activity of a track inspector in this
scenario.” Aplt. Br. at 31. We agree with BNSF that, under normal circumstances,
measuring a track is one of the normal duties of a track inspector. But the jury in this
case could reasonably have agreed with Fresquez that “[m]uch of [his] conduct in May
2016,” including his refusal to measure the track on May 5, 2016, amounted to a refusal
to assist Paz in violating federal regulations. Aple. Br. at 42. As Fresquez notes, the
evidence he presented at trial would have allowed the jury to find that he “had been
avoiding participating—and attempting to thwart—his supervisors’ illegal conduct” in
“remov[ing] defects from the TIMS system or falsely mark[ing] them as repaired,
[thereby] violating federal regulations that required these tracks to be taken out of service
after a 30-day repair window.” Id. Indeed, earlier on May 5, 2016, Fresquez had refused
Paz’s request to falsely reclassify a non-class specific defect and in turn had called the
FRA agent to discuss the matter. Later, when Fresquez and Paz met at the site of the
second defect identified by Fresquez, Paz began the encounter by telling Fresquez that he
did not see the defect, even though, according to Fresquez, Paz was aware that the defect
was of a type that could not be observed with the naked eye. We conclude that the jury
could have reasonably agreed with Fresquez that “Paz asked Fresquez to perform a
43
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 44
useless measurement of an already-known defect” and “that Paz’s . . . request was an
attempt to ensnare Fresquez in Paz’s illegal schemes and would lead to Paz removing the
defect from the system.”9 Id. at 42–43. In other words, although participating in simply
measuring the defect would not have itself been a violation of federal law or regulations,
the jury could have reasonably found that Fresquez believed that such an act would have
amounted to willing and knowing participation in Paz’s goal of removing the defect from
the TIMS system without actually repairing it.
5. BNSF’s same-decision defense
In its second general issue on appeal, BNSF argues that it is also entitled to
judgment as a matter of law on the merits of Fresquez’s FRSA claim because it
demonstrated by clear and convincing evidence that it would have terminated Fresquez’s
employment even in the absence of him engaging in protected activity under the FRSA.
BNSF made this same argument, both at the conclusion of all the evidence, and
again in its post-judgment motion for judgment as a matter of law. At the conclusion of
all the evidence, the district court denied BNSF’s motion for judgment as a matter of law
on this issue, noting that both Miller and Detlefsen “testified that they relied on . . . Paz’s
9
Paz conceded during his testimony at trial that the track defect at issue had been
in existence for some time, and that he did not need to call Fresquez out to the site of the
defect to remeasure it. Aplt. App., Vol. VII at 1742. Herzog, who was a direct witness to
the incident, testified that after Paz asked Fresquez to measure the defect, Fresquez stated
to Paz, “You’re just trying to prove that this defect isn’t here,” and “You’re trying to
measure this and say that there’s no defect here when we know there’s a defect here.” Id.
at 1835.
44
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 45
testimony to support the insubordination charge, and plaintiff has submitted evidence that
. . . Paz may have slanted his hearing testimony against the plaintiff and may have been
dishonest and outright lied during the hearing.” Aplt. App., Vol. X at 2491. In rejecting
BNSF’s post-judgment motion, the district court stated:
BNSF contends that it is entitled to judgment as a matter of law
because it would have dismissed Fresquez regardless of his claimed
protected activity because “BNSF has a written rule prohibiting
insubordination and making it [a] stand-alone dismissible offense.” (ECF No.
209 at 17.) BNSF argues that it “consistently enforces its rules relating to
insubordination, and has discharged other employees for violating this rule.”
(Id.) It further points out that Fresquez’s “dismissal was decided by a senior
manager and a corporate representative that were far removed from
[Fresquez’s] alleged protected activities.” (Id.)
In response, Fresquez argues that “BNSF did not prove, much less by
clear and convincing evidence, that Fresquez was insubordinate” and that
“[t]he jury could infer from the evidence that Paz did not order Fresquez to
string-line the defect and instead asked Fresquez whether he wanted to
remeasure the defect, a distinction which Miller conceded is dispositive on
the issue of whether Fresquez was insubordinate.” (ECF No. 226 at 25.)
Fresquez likewise contends that BNSF “did not prove that it has terminated
every other similar situated employee who has questioned a similar order in
the manner Fresquez questioned Paz’s order,” whereas Fresquez “offered
evidence of other employees not being fired despite engaging in objectively
more insubordinate conduct.” (Id. at 26–27.)
After reviewing the evidence and drawing all inferences in Fresquez’s
favor, the Court finds that a reasonable jury could conclude that there was
some ambiguity regarding whether Fresquez was truly insubordinate (or
whether Paz was searching for a reason to terminate him) and whether BNSF
would have charged a similarly situated employee with insubordination
instead of a non-dismissible offense like failure to follow orders.
Accordingly, the evidence at trial does not require an unambiguous
conclusion that BNSF has proved its affirmative defense by clear and
convincing evidence. The Court therefore also denies this portion of BNSF’s
Rule 50(b) Motion.
Id., Vol. III at 876–77.
45
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 46
In challenging the district court’s decision, BNSF begins by citing to other cases in
which courts have “granted judgment as a matter of law to BNSF” on the same-decision
defense. Aplt. Br. at 33–34. We conclude that those cases are largely irrelevant,
however, because they involved different sets of facts than are at issue in this case.
BNSF in turn argues that its PEPA “rules prohibit insubordination” and “treat[] it
as a stand-alone dismissible offense.” Id. at 34. BNSF further argues that it “followed
the procedures in the collective bargaining agreement for Fresquez’s disciplinary
procedure, including through providing a hearing where Fresquez could present witnesses
and question BNSF’s witnesses.” Id. at 34–35. “The dismissal decision,” BNSF notes,
“was made by a senior manager [Miller] and a corporate representative [Detlefsen] that
were far removed from Fresquez’s alleged protected activities.” Id. at 35. BNSF asserts
that it “consistently enforces its rules relating to insubordination, and has discharged
other employees for violating this rule.” Id. Finally, BNSF asserts that “Fresquez’s own
witnesses and experts agree that insubordination is a serious offense at BNSF and in the
railroad industry generally.” Id.
BNSF’s arguments, however, ignore key evidence that was presented at trial. It is
true, to be sure, that BNSF’s PEPA rules expressly prohibit insubordination and treat it as
a stand-alone dismissible offense. But the evidence presented at trial also established that
BNSF’s PEPA rules outline a separate offense entitled “failure to comply with
instructions” that is not a stand-alone dismissible offense. Further, the evidence
established that in practice the distinction between “insubordination” and “failure to
46
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 47
comply with instructions,” both in their wording and in practice, is unclear and
subjective, and that this lack of distinction has historically been employed by BNSF’s
management employees to the disadvantage of certain BNSF employees. For example,
Staci Moody-Gilbert, the general chairwoman for the Brotherhood of Maintenance Way
Employees Division, testified that, in her experience assisting BNSF employees who are
union members, “if you’re a liked employee, . . . you are going to get the failure to
comply with instruction rule” applied to you, but “[i]f you’re not so well liked” by
management, “you’re going to get the insubordination rule.” Aplt. App., Vol. VI at 1358.
In light of this and the other evidence presented at trial, the jury could reasonably have
found that Paz and Carpenter knowingly chose to charge Fresquez with insubordination,
rather than failure to comply with instructions, because they were unhappy with him
calling into question their practice of removing defects from the TIMS system without
repairing them and therefore knowingly chose to target Fresquez for termination.
As for the disciplinary hearing procedures cited by BNSF, the collective
bargaining agreement that existed between BNSF and the union provided that any
employee who had sixty or more days of service with BNSF could not be disciplined or
discharged until they were afforded a fair and impartial hearing or investigation. Id. at
1330. The evidence presented at trial, however, would have allowed the jury to find that
the hearing process was weighted in favor of BNSF management. To begin with, BNSF
management determined which employees would testify at the hearing in support of the
alleged charge and paid only those selected employees for their time appearing at the
47
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 48
hearing. Although the charged employee could request to present his or her own
witnesses, those BNSF employees were not paid for their time appearing at the hearing.
A BNSF management employee presided over the hearing and effectively acted as the
hearing officer. In that role, the presiding BNSF management employee questioned the
witnesses, ruled on objections, and ultimately prepared written findings of fact. The
charged BNSF employee could not have legal representation at the hearing, and instead
had to either proceed pro se or have a union representative (non-lawyer) appear on his or
her behalf. The presiding BNSF management employee’s findings of fact were
forwarded to division management employees and BNSF’s Labor Relations Department,
who determined whether to uphold the alleged charge or remove or reduce the charge. In
making that determination, the division management employees and the Labor Relations
Department were limited to the record produced at the hearing.
As those procedures played out in this case, Carpenter charged Fresquez on May
5, 2016, with insubordination for allegedly refusing to measure the track defect.
Carpenter admitted at the trial in this case that he spoke only to Paz before making the
charge, and did not speak with either Fresquez or Herzog. Carpenter also admitted that it
was a subjective decision on the part of management whether to charge an employee with
insubordination or failing to follow instructions. On May 6, 2016, Carpenter sent an
email to Paz directing him what he should do and say at the hearing on the charge. For
example, Carpenter stated in his email: “I would answer [the hearing officer’s] initial
question about what happened by simply saying ‘Employee refused to get tools and
48
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 49
measure repaired track defect when instructed to do so’.” Aple. App., Vol. V at 1207.
Carpenter further stated: “[B]e firm about your instructions being clear and direct, not
light and optional.” Id. Lastly, Carpenter stated:
Herzog’s statement although not strong does give insight into some potential
reasons [Fresquez] might use as an excuse for his actions. We’ve not listed
Herzog as a witness and are not intending to have him at the Hearing which
is correct but do have the option to call if as things develop, it becomes
apparent his testimony is needed.
Id. At the trial in this case, Carpenter conceded that he could not think of any other
employee who had been discharged for refusing to remeasure a defect, and likewise
conceded that he did nothing in response to Fresquez’s claim that Paz was trying to
remove the defect from the TIMS system.
At the hearing on the insubordination charge, Paz essentially testified as directed
by Carpenter. Notably, Paz testified at the hearing, in direct opposition to the great
weight of the evidence that was presented at the trial in this case, that he and Herzog
could not find any defect and, in turn, that he did not remove the slow order from the
track. Fresquez also testified and provided his side of the story. According to Fresquez,
he was the one who initially “brought up the stringlining” because Paz had “made up his
decision to take the defect off without stringlining it.” Aplt. App., Vol. X at 2630. In
other words, Fresquez testified that Paz “[b]asically stat[ed] that he ha[d] the right just to
take off the defect as he please[d]” and that Fresquez “ha[d] to prove the defect [wa]s
there.” Id. at 2631. Fresquez testified that because of Paz’s statements, he “thought that
49
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 50
it would be pointless to stringline if [Paz] was already going to remove the defect.” Id. at
2634.
The hearing record was then sent to Detlefsen, who reviewed the transcript and
concluded that Paz was telling the truth and Fresquez was lying. The matter then went to
Miller, who at that time served as the general director for BNSF’s Powder River Division
and was Carpenter’s supervisor. Like Detlefsen, Miller concluded, based upon reading
the hearing transcript, that Paz’s testimony at the hearing was credible. He therefore
decided to discharge Fresquez for insubordination.10
Considering all of this evidence together, the jury could have reasonably found
that Paz and Carpenter were looking for a reason to terminate Fresquez’s employment
because Fresquez refused to go along with their misinterpretation of the applicable
regulations, was aware of and in fact was calling out Paz’s actions in removing
unrepaired defects from the TIMS system, and was willing to call the FRA about those
violations. The jury in turn could have reasonably believed Fresquez’s version of what
transpired on May 5, 2016, regarding the measurement of the defect, and thus could have
reasonably found that Paz and Carpenter knowingly used that incident to charge Fresquez
with the dismissible offense of insubordination. The jury could also have reasonably
10
The jury in this case could have reasonably found that Miller did not make an
objective determination regarding Fresquez’s discipline. Notably, Miller sat through the
entire trial in this case and testified that nothing he heard during the trial caused him to
question his decision to discharge Fresquez. Indeed, Miller testified that he would not
change his decision even if Paz lied during his testimony at the disciplinary hearing.
50
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 51
found that Carpenter and Paz knowingly took steps to limit what evidence was presented
at the disciplinary hearing, and that Paz actually lied at the hearing when he testified
about what happened on May 5, 2016. Thus, in sum, the jury could have reasonably
found that the two purported decisionmakers, i.e., Miller and Detlefsen, were not in fact
independent at all, and that their decisions were significantly impacted by the actions and
misconduct of Paz and Carpenter. In other words, we agree with Fresquez that the
evidence presented at trial would have allowed the jury to reasonably find “that the
insubordination charge used to justify [his] termination was false, pretextual, and
motivated by discriminatory animus.” Aple. Br. at 59.
For all of these reasons, we conclude that BNSF has failed to demonstrate by clear
and convincing evidence that it would have discharged Fresquez from his position even
absent his involvement in activities that are protected under § 20109.
B. Is BNSF entitled to a new trial due to the district court’s admission of character
evidence and/or other allegedly prejudicial evidence?
In its third issue on appeal, BNSF argues that it is entitled to a new trial because
the district court erroneously admitted improper character evidence and other highly
prejudicial evidence. In support, BNSF asserts that “Fresquez’s [trial] strategy was to
distract the jury with irrelevant allegations of wrongdoing on the part of Carpenter and
Paz,” and he “spent the better part of a week attempting to prove that they intentionally
violated federal regulations, falsified records by removing defects from the system that
51
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 52
had not been repaired, and pressured subordinates to misreport defects.”11 Aplt. Br. at
37. BNSF in turn asserts that Fresquez “also chose to offer evidence having no
reasonable relationship to the facts in this case in an effort to prejudice the jury against
BNSF.” Id. That evidence, BNSF asserts, related to Paz and included “allegations of
unlawful environmental contamination and forging documents, in both cases 17 months
after Fresquez’s discharge.” Id. at 15. BNSF asserts that this “was improper character
evidence, highly prejudicial, and very likely affected the verdict, thus warranting a new
trial.” Id.
1) Standard of review
“We review for abuse of discretion a district court’s denial of a rule 59(a) motion
for new trial.” Stroup v. United Airlines, Inc., 26 F.4th 1147, 1168 (10th Cir. 2022)
(quotation marks omitted). “Likewise, when the issue of whether to grant a new trial
hinges on the admissibility of evidence,” we review for abuse of discretion the admission
of the challenged evidence. Id. (quotation marks and brackets omitted). It is well
11
We note that the allegations that BNSF now refers to as a “distraction” were
consistently alleged by Fresquez as a central part of his claim of retaliation against
BNSF. For example, in the final pretrial order, Fresquez described his claims, in
pertinent part, as follows: “Fresquez long suspected that his supervisor’s supervisor—
Mark Carpenter—and some of the supervisors under Carpenter were circumventing
federal regulations regarding when damaged track needed to be taken out of service or
have the speed limit on them reduced,” and “Fresquez continued objecting to [their]
circumvention of the federal regulations regarding rail safety, to the point [where]
Carpenter and his right-hand man—Mike Paz—resorted to accusing Fresquez of being
insubordinate and terminate[d] him for it.” Aplt. App., Vol. I at 64–65.
52
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 53
established that “evidentiary rulings are within the sound discretion of the district court.”
Id. (quotation marks omitted). Consequently, “we will reverse only upon a definite and
firm conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” Id. (quotation marks and brackets
omitted).
2) Procedural history of the issue
Prior to trial, BNSF filed a motion in limine to exclude what it asserted was
improper character evidence regarding alleged unrelated misconduct. In the motion,
BNSF alleged that Fresquez “intend[ed] to introduce at trial evidence that his supervisor
[Paz] engaged in misconduct separate and apart from his dismissal, including allegations
that” Paz: (a) “[a]t some point in 2016 . . . was accused of not completing employee
safety interviews but saying that he had”; (b) “surreptitiously recorded a safety briefing”
in August 2016; (c) “improperly filled a ditch or culvert with contaminated soil” in “2016
or 2017”; and (d) allegedly failed to “fully or properly repair track defects” in or around
July 2017. Aplt. App., Vol. I at 108–09. BNSF argued that “[n]one of this alleged
misconduct ha[d] anything to do with [Fresquez’s] allegations in this case,” and that Paz
“denie[d] engaging in the misconduct.” Id. at 109. The district court deferred ruling on
BNSF’s motion in limine until trial.
During the trial, Fresquez presented testimony from David Dunn, a BNSF
employee who worked as a division assistant roadmaster under Carpenter. Dunn thus had
the same title and responsibilities as Paz, knew and was familiar with Paz, and also
53
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 54
occasionally supervised Fresquez. Dunn testified, in pertinent part, that he twice reported
Paz to BNSF for violating safety rules and regulations. On one of those occasions, Dunn
testified, he reported that Paz was dumping toxic soil into a waterway, which Dunn
believed was a violation of federal law. BNSF objected to Dunn’s testimony on this
point, arguing that it “ha[d] nothing to do with . . . Fresquez.” Id., Vol. VIII at 1926. The
district court overruled the objection, noting that it “s[aw] some tangential relevance” to
the testimony. Id.Dunn subsequently testified on direct examination that one of his and Paz’s
responsibilities was to conduct annual safety interviews with the union-level employees
they supervised. Dunn testified that he became concerned on one occasion that Paz had
failed to conduct his required safety interviews, but that Paz had nevertheless reported to
BNSF that he had completed those interviews. Dunn testified that he spoke with some of
the employees who Paz was responsible for interviewing and they all “said they had not
had any interaction with . . . Paz about their safety annual interview[s].” Id. at 1936.
According to Dunn, he raised that concern with his manager.
BNSF renewed its objection to this portion of Dunn’s testimony, and the district
court again noted that it saw some relevance to the testimony:
The problem with [BNSF’s] argument is that I think that this
testimony has some relevance to the culture that existed at the railroad. And
I don’t think it’s limited to July of 2017. I think it just shows Mr. Paz’s
conduct in the workplace. And even though it’s some months after Mr.
Fresquez was terminated, it relates to the same kind of work in a similar
environment. And this witness is someone who worked with both Paz and
Fresquez.
54
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 55
So what I’m going to do is say that under 403 the probative value
outweighs prejudicial effect.
Id. at 1932–33.
BNSF attempted to rebut Dunn’s testimony by presenting testimony from Dane
Freshour, the regional director of human resources for BNSF’s north region. Freshour
testified, in pertinent part, that BNSF’s human resources department had received a
complaint that Paz had not completed his annual safety interviews during 2017.
According to Freshour, his department investigated the complaint by questioning both
Paz and the employees he was supposed to have interviewed, and the department
ultimately concluded that Paz had completed those interviews.
Following the district court’s entry of judgment in favor of Fresquez, BNSF filed a
motion for new trial. In that motion, BNSF argued, in pertinent part, that the district
court’s admission of Dunn’s testimony about the toxic soil and employee safety interview
issues, along with testimony from other witnesses, “permitted [Fresquez] to distract the
jury from his own lack of protected activity and instead base their verdict on the
perceived wrongdoing of . . . Carpenter and . . . Paz.” Id., Vol. III at 714. BNSF argued
that “this evidence was irrelevant,” “unduly prejudicial, “and/or improper character
evidence.” Id. at 716.
The district court denied BNSF’s motion for new trial and concluded, “after
reviewing the challenged . . . evidentiary rulings, . . . that BNSF ha[d] failed to establish
55
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 56
that the . . . evidentiary rulings substantially and adversely affected its rights such that a
new trial [wa]s necessary.” Id. at 889.
3) Analysis
BNSF argues in its appeal that “[t]he only point of” this challenged “evidence was
to impugn the character of” Paz in order “to suggest that he was a law violator, a rule
violator, and dishonest on matters other than concerning track defects, thus suggesting
that he must have been so with respect to track defect issues as well.” Aplt. Br. at 39.
Consequently, BNSF argues, the “evidence falls squarely within Rule 404’s
prohibitions.” Id. at 40. BNSF in turn argues that “[t]he evidence was . . . highly
prejudicial” because “[t]he result was that the jury heard inflammatory testimony labeling
a key player in the case as having engaged in illegal environmental dumping.” Id. at 40–
41. BNSF also argues that this evidence “improperly bolstered Fresquez’s other attacks
on Paz concerning track defects and painted him as a rogue manager.” Id. at 42. Indeed,
BNSF argues, “[t]hat evidence may well explain the jury’s finding of retaliation
notwithstanding the lack of evidence of cognizable protected activity as well as the
grossly excessive award of compensatory damages.” Id.Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” But Rule
404(b)(2) also provides that such evidence “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
56
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 57
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “This list of permissible uses is
illustrative, not exhaustive,” and thus “[t]he rule admits all other-act evidence except that
tending to prove only propensity.” United States v. Armajo, 38 F.4th 80, 84 (10th Cir.
2022). “A valid purpose under Rule 404(b) is not the end of the story, however.” Id.“Even otherwise relevant evidence may be subject to exclusion under Rule 403, which
provides that evidence may be excluded if its probative value is substantially outweighed
by a danger that it will lead to unfair prejudice, confusion of the issues, or wasted time.”
Id. (citing Fed. R. Evid. 403).
We conclude that the district court did not abuse its discretion in determining that
this challenged testimony from Dunn was relevant. To be sure, the testimony concerned
allegedly wrongful conduct by Paz that occurred after Fresquez was terminated from his
position. Nevertheless, as the district court explained on the record in admitting the
evidence, the testimony was relevant because it showed Paz’s general mode of operating
in the BNSF workplace and, in turn, the type of work environment that he created, with
Carpenter’s approval. Although BNSF suggests otherwise, Fresquez presented
significant evidence that Paz, sometimes at Carpenter’s direction and most certainly with
his express or implicit approval, routinely ignored applicable federal safety regulations
relating to track defects. More specifically, that evidence established that Carpenter
openly disputed and defied the well-accepted interpretation of the federal safety
regulations requiring non-class specific track defects to be repaired within thirty days,
and that Paz adopted the same stance by failing to timely require such defects to be
57
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 58
repaired or, alternatively, by removing those defects from the TIMS system without
repairing them. The evidence presented by Fresquez also established that Paz created an
atmosphere of intimidation among the union-level employees he supervised, specifically
encouraging his supervisees to ignore the applicable safety regulations and effectively
ostracizing or punishing those employees who stood up to him. It was undoubtedly all of
this evidence that led the district court to conclude that Dunn’s testimony regarding Paz’s
potential dumping of toxic soil and failure to conduct annual safety interviews was
relevant for purposes of showing “the culture that existed at the railroad” under his
supervision. Aplt. App., Vol. VIII at 1932.
We further conclude that the district court did not abuse its discretion in balancing
the testimony’s probative value against its prejudicial effect. Indeed, in our view, BNSF
has greatly overstated the potential prejudicial impact of the challenged testimony by
Dunn. Dunn’s testimony on the toxic soil and annual safety review issues was very brief.
Further, the two alleged instances of improper conduct that Dunn testified to were not
more egregious in nature than the wrongful conduct that Fresquez and other witnesses
described when they testified about Paz removing defects from the TIMS system and
otherwise ignoring federal safety regulations regarding track defects.
Because the district court did not err in admitting the challenged testimony by
Dunn, we conclude that the district court did not abuse its discretion in denying BNSF’s
motion for new trial.
58
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 59
C. Did the district court err in denying BNSF’s combined request for a new trial on the
issue of compensatory damages or, in the alternative, a remittitur of compensatory
damages?
In its fourth issue on appeal, BNSF argues that the district court abused its
discretion in denying BNSF’s combined request for a new trial on the issue of
compensatory damages or, in the alternative, a remittitur of compensatory damages. In
support, BNSF asserts that “[t]he jury awarded Fresquez $800,000 in compensatory
damages based on thin evidence of claimed emotional distress that was no more than
‘garden-variety’ distress.” Aplt. Br. at 154. “That amount,” BNSF asserts, “is grossly
excessive so [this] Court should order a substantial remittitur.” Id.
1) Standard of review
As previously noted, “we review for abuse of discretion a district court’s denial of
a rule 59(a) motion for new trial.” Stroup, 26 F.4th at 1168 (quotation marks omitted).
Likewise, “[w]e review a trial court’s decision to deny remittitur of compensatory
damages for abuse of discretion.” Burke v. Regalado, 935 F.3d 960, 1035 (10th Cir.
2019). “As the reviewing court, we must view the evidence in the light most favorable to
the prevailing party.” Id. (quotation marks omitted).
“To determine whether remittitur is appropriate, courts must evaluate whether the
evidence supports the verdict.” Id. “The jury has wide latitude to choose an award based
on the evidence.” Id. (quotation marks and brackets omitted). “Remittitur is appropriate
only when the jury award is so excessive . . . as to shock the judicial conscience and to
59
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 60
raise an irresistible inference that passion, prejudice, corruption or another improper
cause invaded the trial.” Id. (quotation marks omitted).
2) Procedural history of the issue
In the final pretrial order, Fresquez alleged, in pertinent part, that he was entitled
“to his wage and benefit loss, in an amount to be determined by the jury,” “front pay in
lieu [of reinstatement] in an amount to be recommended by the jury and decided by the
Court,” and “compensatory damages for garden-variety emotional distress in an amount
to be determined by the jury.” Aplt. App., Vol. I at 68. The district court subsequently
concluded that it would determine the amount of front and back pay.
During the trial, Fresquez testified about his son, who was born shortly after
Fresquez began working for BNSF. Fresquez testified that he is the primary care
provider for his son. Fresquez also testified that his son has various health issues that are
expensive to deal with, and that, as a result, the health insurance plan that was provided
to him by BNSF was important. According to Fresquez, the termination was “extremely
hard” on him and “really stressful.” Id., Vol. VI at 1517. Fresquez testified that it forced
him “to find new jobs,” and that the employee benefits at those new jobs were “not as
good” as those he received from BNSF. Id. Fresquez’s counsel asked him on direct
examination if the termination “[h]a[d] . . . changed who [he] [was] as a person?” Id.Fresquez testified that it had, and he proceeded to explain: “I don’t sleep no more,” “[m]y
stress levels are out the door,” and “I got fat.” Id. at 1518. Fresquez further testified that
when he worked for BNSF, he coached a youth baseball team, but that the stress of the
60
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 61
termination caused him to quit coaching. Fresquez also testified that the stress of the
termination had affected his enjoyment of everything in his life.
During cross-examination by BNSF’s counsel, Fresquez conceded that he had not
seen a mental health provider for counseling following the termination of his position at
BNSF. BNSF’s counsel also asked Fresquez about his decision to quit coaching the
youth baseball team and when that occurred. Fresquez admitted that he “[c]oached for
two years” after his termination, but that the stress of the situation “really took a toll on”
him and he “started coaching the way [he] didn’t want to be coaching,” so he “decided
[he] no longer wanted to coach.” Id., Vol. VII at 1622. Lastly, BNSF’s counsel asked
Fresquez about health insurance coverage for his son. Fresquez testified that he was able
to keep the BNSF-provided health insurance for approximately five months following his
termination, and that after that time his son “went on his mother’s health insurance” plan.
Id. at 1624.
During the closing arguments, Fresquez’s counsel reminded the jury: “You heard
that [Fresquez’s] son . . . was born two days” after Fresquez began working for BNSF
“and that because of [his son’s] health conditions, benefits were very important to him.
Not to mention, [Fresquez] is the primary care provider for his son, and so the wages
were also important.” Id., Vol. X at 2525. Later during the closing argument, Fresquez’s
counsel discussed the issue of damages:
So now let’s talk about Fresquez’s damages. [Fresquez] is entitled to
wage loss, emotional distress, and punitive damages. His wage loss and
61
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 62
benefit loss . . . from the time he was fired until the time he retires is
$1,522,527.
[Defense counsel objected, arguing that evidence of Fresquez’s wage
loss “ha[d] been specifically excluded,” and the district court sustained the
objection]
So you are wondering . . . why are you putting up his wage loss if the
Court’s going to decide that? Here’s why. A good rule of thumb for
emotional distress damages is twice his wage and benefit loss. And here’s
the reason why. The reason lawyers use this is as follows: One-third of your
life, eight hours a day, is spent at work. And you work so that the other two-
thirds of your life is enjoyable. So when you are fired, when you are treated
the way [Fresquez] was treated, when you are deprived of benefits, it bleeds
over into those two-thirds. So a rule of thumb is the emotional distress
damages should be double your wage loss, two-thirds of the time compared
to one-third of the time. But there’s no science to this. Maybe it’s half that
amount. Maybe it’s what his wage loss is. Maybe it’s half that amount.
There’s no real science to this.
You guys know what it’s like to have to all of a sudden worry about
your seniority, whether you are going to have a job, start a new career after
a decade, to worry about your son’s benefits and whether you are going to be
able to afford his treatment, to tell your son you were fired for doing the right
thing, to be so stressed out and unable to sleep at night. You stop liking the
things you used to enjoy, like coaching baseball. You guys know what it’s
like to tell your son, Hey, you need to eat at Grandma’s because I don’t know
the next time I can afford food.
There’s no science to this. So the rule of thumb, double wage loss.
Maybe it’s equal to wage loss. Maybe it’s half that amount. You guys talk
about it. It’s for you to decide.
Id. at 2555–56.
BNSF’s counsel also discussed the issue of damages during his closing argument,
stating as follows:
Ladies and gentlemen, [Fresquez’s counsel] just asked you to award
. . . Fresquez $3 million for this emotional distress, $3 million, for emotional
62
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 63
distress that has affected him in really one way that he talked about. He can’t
coach baseball, meaning he’s not the head coach for the baseball team.
Hasn’t sought counseling. Hasn’t gone and seen a therapist. The emotional
distress hasn’t been so bad that he’s attempted to do anything about it, but
it’s so bad that you-all should award him $3 million? So that’s the damages
case.
Id. at 2584.
At the conclusion of all the evidence, the district court instructed the jury as
follows regarding its determination of compensation for the losses that Fresquez suffered
as a result of his termination:
If you find in favor of the Plaintiff on his retaliation claim, then you
must determine an amount that is fair compensation for the Plaintiff’s losses.
You may award compensatory damages for injuries that the Plaintiff proved
by a preponderance of the evidence were caused by the Defendant’s wrongful
conduct. The damages that you award must be fair compensation, no more
and no less.
In calculating compensatory damages, you should not consider any
back pay or front pay that the Plaintiff lost. The award of back pay and front
pay, should you find the Defendant liable on the Plaintiff’s claim, will be
calculated and determined by the Court.
The Plaintiff claims damages for any emotional distress, pain,
suffering, inconvenience, or mental anguish that the Plaintiff experienced as
a consequence of his termination by the Defendant. No evidence of monetary
value of such intangible things as pain and suffering has been, or need be,
introduced into evidence. There is no exact standard for setting the
compensation to be awarded for these elements of damages. Any award you
make should be fair in light of the evidence presented at trial.
In determining the amount of any damages you decide to award, you
should be guided by common sense. You must use sound judgment in fixing
an award of damages, drawing reasonable inferences from the facts in
evidence. You may not award damages based on sympathy, speculation, or
guesswork. On the other hand, the law does not require that the Plaintiff
63
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 64
prove the amount of his losses with mathematical precision, but only with as
much definiteness and accuracy as circumstances permit.
Id., Vol. I at 282 (Instruction No. 21).
The jury, after deliberating, found that Fresquez “prove[d] by a preponderance of
the evidence that he should be awarded compensatory damages for emotional distress,
pain, suffering, inconvenience, or mental anguish,” and it awarded Fresquez $800,000 in
such damages. Id., Vol. I at 295.
In its post-judgment motion for new trial, BNSF argued, in pertinent part, that it
was entitled to a new trial or a remittitur on the issue of compensatory damages. BNSF
argued that “[t]he jury’s award of $800,000 in compensatory damages [wa]s against the
weight of the evidence and excessive.” Id., Vol. III at 720. BNSF noted that “[t]he only
evidence in support of the compensatory damages award [wa]s [Fresquez]’s testimony
that he: (1) is making less money and finding a new job was really hard on him and his
family . . . ; (2) he does not sleep much and has gained a lot of weight . . . ; and (3) he
quit coaching competitive youth baseball after he was dismissed because of the stress.”
Id. at 720–21. BNSF noted, however, that Fresquez admitted on cross-examination “that
he ha[d] not gone to see a mental health provider for counseling for depression” and
“continued to assist with [some baseball] coaching.” Id. at 721.
In a written order denying BNSF’s motion for new trial, the district court
specifically addressed the issue of compensatory damages:
Although BNSF speculates that the jury’s verdict “appears to be based
on improper arguments of counsel and an intent to punish . . . rather than a
64
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 65
reasoned consideration of the evidence” (ECF No. 210 at 17), BNSF offers
scant evidence that the jury acted out of passion or prejudice against BNSF
instead of based on Fresquez’s testimony regarding his non-economic
damages. While the Court recognizes that Fresquez did not describe his
emotional distress in the most graphic or descriptive terms, he clearly
described that the stress from his termination had affected him in significant
ways. The events giving rise to this litigation changed who he is as a person
by causing him to feel stress about feeding his son, affecting his ability to
sleep, causing him to gain weight, and causing him to quit taking part in
activities that he loved. The Court will not substitute its own judgment for
that of the jury regarding the appropriate amount of compensatory damages,
particularly absent any evidence that the jury acted with passion, prejudice,
or another improper cause. See McInerney v. United Air Lines, Inc., 463 F.
App’x 709, 723 (10th Cir. 2011) (affirming $300,000 award for
compensatory damages where plaintiff testified that her discharge left her
crying for weeks with bouts of depression, caused her to have trouble
sleeping, had an effect on her home life and caused her to lose confidence).
Because the Court cannot conclude that the jury’s award is unsupported by
evidence or contrary to reason, BNSF’s request . . . that the Court grant
judgment as a matter of law or order a new trial as to compensatory damages
is denied.
Id. at 879–80.
3) Analysis
Viewing the evidence presented at trial in the light most favorable to Fresquez, we
conclude that the jury could readily have found that: (a) the termination of Fresquez’s
employment with BNSF caused him severe emotional distress, due both to being
terminated under false pretenses and because it forced him to have to search for other
available work, all of which offered lower pay and lesser benefits than the position he
held with BNSF; (b) the termination of Fresquez’s employment with BNSF resulted in
Fresquez losing his BNSF-provided health insurance benefits, and in turn caused his son
to have to turn to his mother’s health insurance policy for coverage for his health
65
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 66
conditions; and (c) the stress that resulted from the termination of his employment caused
Fresquez to gain a significant amount of weight and diminished his overall enjoyment in
the daily activities of life, including coaching his son’s baseball team.
To be sure, Fresquez admitted to never having seen a therapist to deal with the
stress caused by his termination, and, in turn, he presented no expert testimony regarding
his emotional distress. Nevertheless, the jury could have decided, consistent with the
closing arguments of Fresquez’s counsel, to award Fresquez an amount of damages for
emotional distress that was approximately half of his estimated wage and benefit loss.12
As Fresquez’s counsel outlined in his closing arguments, this methodology, which BNSF
has never objected to, essentially awarded Fresquez compensatory damages for the
diminishment in the value of his free time that was caused by the stress of his
termination, and the effects of that termination on his income and the well-being of
himself and his son. Ultimately, we cannot say, given all of the evidence that was
presented at trial, that the jury’s award was so excessive as to shock the judicial
conscience.
We therefore conclude that the district court did not abuse its discretion in denying
BNSF’s motion for new trial on this issue, or in denying BNSF’s alternative request for a
12
Although BNSF’s counsel objected to Fresquez’s counsel’s estimate of
Fresquez’s wage and benefit loss, they did not otherwise object to the methodology that
Fresquez’s counsel proposed the jury use to determine the damages for emotional
distress.
66
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 67
remittitur. See Wooten v. BNSF Ry. Co., 819 F. App’x 483, 487 (9th Cir. 2020)
(affirming jury’s compensatory damages award of $500,000 for emotional distress to
plaintiff in FRSA case who was wrongfully portrayed as liar, and subsequently
terminated, by BNSF). See also Wooten v. BNSF Ry. Co., 387 F. Supp. 1078 (D. Mont.
2019).
D. Is BNSF entitled to judgment as a matter of law as to punitive damages?
In its fifth issue on appeal, BNSF argues that it is entitled to judgment as a matter
of law on the issue of punitive damages. BNSF argues in support that “Fresquez . . . did
not prove that BNSF engaged in conduct sufficient to hold the corporation liable for
punitive damages.” Aplt. Br. at 48. BNSF notes that “[t]here is no dispute that Detlefsen
and Miller were the employees who made the dismissal decision,” and it argues “there
[wa]s no evidence whatsoever that Detlefsen or Miller engaged in conduct warranting
punitive damages.” Id. at 49.
1) Standard of review and applicable law
As we have noted, we review de novo a district court’s denial of a motion for
judgment as a matter of law, applying the same standards as the district court. Bimbo
Bakeries, 29 F.4th at 640. A court may enter judgment as a matter of law only when the
nonmovant has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for the nonmovant on that issue. Id. In reviewing a
district court’s denial of a motion for judgment as a matter of law, we draw all reasonable
inferences in favor of the nonmoving party, and we will reverse the district court only if
67
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 68
the evidence points but one way and is susceptible to no reasonable inferences supporting
the nonmovant. Id. at 641.
The “Remedies” provision of § 20109 of the FRSA states, in relevant part, that
“[r]elief . . . may include punitive damages in an amount not to exceed $250,000.”
49 U.S.C. § 20109(e)(3).
2) Procedural history of the issue
In his complaint, and later in the final pretrial order, Fresquez alleged that he was
seeking punitive damages against BNSF under the FRSA. At trial, Fresquez’s counsel
asked the jury, during closing arguments, to award Fresquez $250,000 in punitive
damages. Fresquez’s counsel argued that this amount was “necessary to show BNSF . . .
retaliation is not okay” and “enough to get . . . Miller to finally investigate, to go out and
look at that defect.” Aplt. App., Vol. X at 2556–57. Lastly, Fresquez’s counsel told the
jury: “And I will have you note, even if you added all of the wage loss that we have
requested and the punitive damages, that’s less than 10 hours of BNSF’s profit, less than
they will make today.” Id. at 2557. BNSF’s counsel, in his closing argument, asserted
that BNSF had acted in good faith and “ha[d] all the right policies” in place. Id. at 2584.
The district court gave the jury the following instruction regarding their
determination of punitive damages:
In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages. The
purpose of an award of punitive damages is to punish a wrongdoer for
misconduct, and also to provide a warning to others.
68
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 69
You may award punitive damages if you find the Plaintiff has proved
by a preponderance of the evidence that the Defendant acted with reckless or
callous disregard of the Plaintiff’s right to be free from retaliation for engaging
in a protected activity. The Defendant acted with reckless or callous disregard
if the Plaintiff proved by a preponderance of the evidence that the Defendant’s
employees who made the decision to terminate the Plaintiff’s employment
knew that the termination was in violation of the law prohibiting retaliation,
or acted with reckless or callous disregard of that law.
In deciding the amount of punitive damages, you may consider the
following:
1. The offensiveness of the conduct;
2. The amount needed, considering the Defendant’s financial condition,
to prevent the conduct from being repeated; and
3. Whether the amount of punitive damages bears a reasonable
relationship to the actual damages awarded.
However, you may not award punitive damages if the Defendant has
proved by a preponderance of the evidence that the retaliatory actions by the
Defendant’s employees were contrary to the Defendant’s good faith efforts to
comply with the FRSA by implementing and enforcing policies and programs
designed to prevent unlawful retaliation.
Id., Vol. I at 284–85 (Instruction No. 23).
The jury, after deliberating, found that Fresquez had proven by a preponderance of
the evidence that BNSF acted with reckless or callous disregard of his right to be free
from retaliation for engaging in a protected activity, and it awarded Fresquez $250,000 in
punitive damages. Id. at 295.
Following the district court’s entry of final judgment, BNSF filed a combined
motion for new trial and judgment as a matter of law that addressed, in pertinent part, the
jury’s award of punitive damages. On March 8, 2021, the district court issued a written
order denying BNSF’s motion. With respect to the issue of punitive damages, the district
69
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 70
court noted that “BNSF [wa]s implicitly asking the Court to view the evidence in [its]
favor, instead of Fresquez’s favor, . . . notwithstanding certain evidence regarding
BNSF’s efforts to comply with the FRSA.” Id., Vol. III at 881. The district court noted
that “the jury . . . heard testimony that BNSF ha[d] a culture that disregard[ed] railroad
safety rules and employee rights.” Id. The district court also noted that “even though
Detlefsen reviewed the investigatory transcript, which contained Fresquez’s complaint
that he was being retaliated against, she did little to investigate Fresquez’s claim” that
Paz was acting illegally and had retaliated against Fresquez for calling out that conduct.
Id.
3) Analysis
BNSF argues in its appeal “that Detlefsen and Miller were the employees who
made the dismissal decision,” and that “there is no evidence whatsoever that Detlefsen or
Miller engaged in conduct warranting punitive damages.” Aplt. Br. at 49. BNSF also
argues that, even if there was a work culture in place in Denver that disregarded safety
rules and employee rights, “such evidence would not in any event support the punitive
damages award.” Id. at 50.
We reject BNSF’s arguments. Although BNSF repeatedly asserts that Detlefsen
and Miller were the decisionmakers in this case, the jury could have reasonably found, as
we have already explained, that the entire charge and investigatory process was
effectively guided and controlled by Carpenter and Paz. This began with the precise
BNSF policy provision that Carpenter and Paz decided to charge Fresquez with violating,
70
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 71
i.e., a violation that, if proven, automatically resulted in the termination of Fresquez’s
employment, and in turn the manner in which they presented evidence at the hearing on
the charge. The jury could have reasonably found that Paz repeatedly lied during that
hearing, and that Detlefsen and Miller in turn relied on that false testimony in making
their decision to terminate Fresquez’s employment. Relatedly, the jury could have
reasonably found that Detlefsen has always upheld charges leveled by BNSF
management and never found in favor of a union employee. We also agree with the
district court that the jury could reasonably have found that Carpenter and Paz created
and promoted a workplace culture that encouraged the flouting of federal safety
regulations, and openly discouraged employees, by way of intimidation and fear of
reprisal, from objecting to these practices, all for the purpose of allowing trains to
continue to run on tracks that contained defects. Notably, the evidence presented at trial
by Fresquez also would have allowed the jury to reasonably find that taking tracks out of
service reduces a railroad’s profits, and that, because of that, BNSF’s managers were
effectively motivated to misreport or underreport track defects. Finally, the jury could
have reasonably found, based upon the evidence presented by Fresquez, that in 2016
BNSF earned a profit of approximately $4 billion dollars. In light of all of this evidence,
we have little trouble concluding that there was a legally sufficient evidentiary basis for
the jury in Fresquez’s case to find for Fresquez on the issue of punitive damages, and in
turn to award him the statutory maximum amount of punitive damages.
71
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 72
E. Did the district court err in awarding Fresquez ten years’ worth of front pay?
In its final issue on appeal, BNSF argues that the district court abused its
discretion by awarding Fresquez ten years’ worth of front pay. In support, BNSF makes
two distinct arguments. First, BNSF argues that the “front pay” that the district court
purported to award Fresquez was “actually a damages judgment for loss of future earning
capacity.” Aplt. Br. at 51. Second, BNSF argues that the district court awarded an
amount of front pay that was larger than the court’s equitable jurisdiction and the record
permitted.
1) Standard of review
Where, as here, a district court awards front pay as an equitable remedy in an
action filed under an applicable federal law, we review the district court’s award for
abuse of discretion. See Tudor, 13 F.4th at 1040 (reviewing front pay award in action
brought by former professor against state university under Title VII); Hayes v. SkyWest
Airlines, Inc., 12 F.4th 1186, 1204 (10th Cir. 2021) (reviewing front pay award in action
brought by former employee against employer under the Family and Medical Leave Act
and Americans with Disabilities Act); Whittington v. Nordam Grp., Inc., 429 F.3d 986,
1001 (10th Cir. 2005) (reviewing front pay award in action brought by former employee
against employer under the Age Discrimination in Employment Act). “The district
court’s discretion encompasses both whether to award front pay and the amount of the
award.” Hayes, 12 F.4th at 1204. “Because determining a front pay award requires the
district court to predict future events and consider many complicated and interlocking
72
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 73
factors, we review such awards with considerable deference.” Whittington, 429 F.3d at
1001 (quotation marks omitted).
2) Procedural history of the issue
Fresquez, in his complaint, sought “reinstate[ment] . . . to the same position he
held when he was terminated,” as well as “such other relief as the Court deems just and
equitable.” Aplt. App., Vol. I at 30–31. In the final pretrial order, Fresquez modified his
request slightly, stating that he was entitled to “reinstatement with the at-issue discipline
expunged and the seniority he would have had but for the at-issue discipline” or,
alternatively, “if the [district court] determines that reinstatement is impractical, which
Fresquez believes is the case, front pay in lieu in an amount to be recommended by the
jury and decided by the [c]ourt.” Id. at 68.
Prior to trial, the district court determined that the issues of back pay and front pay
were equitable remedies to be decided by the court. Consequently, at trial, the jury was
not asked to determine back pay or front pay. After the jury returned its verdict, the
district court encouraged the parties to attempt to reach an agreement on the issues of
back pay and front pay and, if necessary, to request a hearing on those issues. The
parties, however, were unable to reach an agreement on those issues.
As a result of this impasse, Fresquez moved for an award of back pay and front
pay. Fresquez asked for “an award of backpay in the amount of $183,821, with interest,
and frontpay in the amount of $1,338,706, with interest, for a combined total award for
lost wages and benefits in the amount of $1,522,527, with interest.” Id., Vol. II at 305.
73
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 74
BNSF responded to Fresquez’s motion and asked that his “wage loss instead be limited to
the difference between what he would have made at BNSF based on his actual wages and
what he could have made with reasonable efforts to mitigate his damages for a reasonable
period following his termination.” Id. at 384.
The district court held a hearing on the issues of back pay and front pay. Fresquez
testified and also presented testimony from his expert witness, Jeffrey Opp, regarding
proposed calculations for the back pay and front pay. BNSF presented testimony from a
vocational expert, Cynthia Bartmann, regarding Fresquez’s employability, estimated
wages, and how long it should have taken Fresquez to find work following the
termination of his employment with BNSF.
On November 4, 2019, the district court issued an order granting in part, denying
in part, and taking under advisement in part, Fresquez’s motion for back pay and front
pay. The district court concluded that “granting front pay until 2045 [when Fresquez
would reach the retirement age of 60] would surely result in a windfall to Fresquez,” but
it also “conclude[d] that granting front pay for only two or three years would result in an
unwarranted and unmerited windfall to BNSF.” Id. at 438. The district court thus
concluded that, “[g]iven [Fresquez’s] intent to stay with the company for the long term,
but also factoring in his youth, his opportunities for a significant, if not comparable, wage
and benefits package as a building inspector, as well as his disciplinary history,” that he
“would likely have remained at BNSF for an additional ten years.” Id. at 438–39. The
district court therefore “f[ound] that Fresquez [wa]s entitled to ten years of front pay from
74
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 75
the date of the jury verdict.” Id. at 439. The district court rejected BNSF’s argument that
Fresquez failed to make reasonable efforts to mitigate his damages. The district court
also rejected BNSF’s argument that the court was limited to “simply determin[ing] the
length of the front pay period” and lacked authority to “award a specific dollar amount
for front pay.” Id. at 445–46. The district court ordered the parties “to submit
simultaneous supplemental briefing . . . on the issue of the correct amount of back pay
and front pay to be awarded to Fresquez.” Id. at 446. In doing so, the district court
“instructed the parties to not reduce Fresquez’s back pay by the amount Fresquez
received in unemployment benefits,” “to omit any health insurance payments from the
back pay calculation for failure to prove the amount spent due to lack of health
insurance,” “to calculate Fresquez’s estimated but-for wages using the method of expert
witness Jeffrey Opp,” “to calculate the relative loss in health benefits using a multiplier,”
and to “include prejudgment interest using a fixed rate of 5.54%, compounded monthly
and according to a formula approved by the Tenth Circuit.” Id., Vol. III at 666 (footnote
omitted).
On December 17, 2019, the district court issued an order awarding Fresquez “a
total tax-adjusted award of back pay, front pay, and prejudgment interest through
December 17, 2019 of $696,173.” Id. at 681 (emphasis omitted).
75
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 76
3) Failure to distinguish between front pay and damages for loss of future
earnings capacity
BNSF begins its challenge to the district court’s front pay award by arguing that
the district court committed an error of law when it failed to distinguish between front
pay and damages for loss of future earnings capacity. According to BNSF, the district
court’s award was actually for loss of future earnings capacity rather than front pay in
lieu of reinstatement.
We recently held, in the context of a Title VII case, that damages for lost future
earnings are economic rather than equitable in nature. See Jensen v. West Jordan City,
968 F.3d 1187, 1199–1200 (10th Cir. 2020).13 Notably, however, we have never
addressed the difference between front pay in lieu of reinstatement and damages for loss
of future earnings capacity.
An excellent discussion of this difference is contained in the Seventh Circuit’s
decision in Williams v. Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 1998). In that case,
the Seventh Circuit reviewed a district “court’s decision to award both front pay and . . .
lost future earnings as damages” to a plaintiff who had alleged under Title VII and the
Equal Pay Act that defendant, her former employer, had “refused to promote her” “on the
basis of her sex” and subsequently “fired her after she complained that the company paid
13
In Jensen, the plaintiff, a former police officer, effectively claimed reputational
damage caused by defendants wrongfully prosecuting him for criminal activity, and he
asserted that this reputational damage would prevent him from ever obtaining another
position as a police officer.
76
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 77
men in her position more than it paid women.” Id. at 946. The defendant-employer
argued on appeal “that the front pay award and the lost future earnings award [we]re
duplicative and therefore overcompensatory.” Id. at 953. In addressing and rejecting this
argument, the Seventh Circuit noted that “the two awards compensate the plaintiff for
different injuries.” Id. “Front pay,” the Seventh Circuit noted, “compensated [plaintiff]
for the immediate effects of [defendant’s] unlawful termination of her employment” and
“approximated the benefit [plaintiff] would have received had she been able to return to
her old job.” Id. The Seventh Circuit in turn noted that “[t]he lost future earnings award,
in contrast, compensate[d] [plaintiff] for a lifetime of diminished earnings resulting from
the reputational harms she suffered as a result of [defendant’s] discrimination.” Id.Thus, the Seventh Circuit noted, “[e]ven if reinstatement had been feasible in this case,
[plaintiff] would still have been entitled to compensation for her lost future earnings.” Id.The court explained that “[a] reinstated employee whose reputation and future prospects
have been damaged may be effectively locked in to his or her current employer” and
“cannot change jobs readily to pursue higher wages and is more likely to remain
unemployed if the current employer goes out of business or subsequently terminates the
employee for legitimate reasons.” Id. “These effects of discrimination,” the court noted,
“diminish the employee’s lifetime expected earnings.” Id. The Seventh Circuit therefore
held that “there [wa]s no overlap between the lost future earnings award and the front pay
award.” Id.77
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 78
Applying these definitions to the facts of our case, it is apparent that Fresquez has
never sought, and the district court did not award him, damages for loss of future
earnings capacity. As previously discussed, Fresquez’s complaint requested
reinstatement to his position with BNSF, and he persisted with that request through the
time of trial. Once it became apparent that reinstatement was not possible, however,
Fresquez then moved for an award of front pay in lieu of reinstatement. Notably,
Fresquez has never alleged nor attempted to prove that BNSF’s retaliatory conduct in
discharging him from his employment damaged his reputation or future prospects of
employment with other employers, as would be necessary for him to obtain a damages
award for loss of future earnings capacity.
Most importantly, the district court’s front pay award is entirely consistent with
the definitions outlined by the Seventh Circuit in Williams. The district court’s award
compensated Fresquez “for the immediate effects of [BNSF’s] unlawful termination of
[his] employment” and “approximated the benefit [Fresquez] would have received had
[he] been able to return to [his] old job.” Id. Although BNSF complains that Opp
referred in his report to “future lost earnings,” Aplt. App., Vol. II at 388, Opp’s
calculations in that regard were based upon the differences between the amounts
Fresquez would have earned had he been reinstated to his position at BNSF and the
amounts that Opp calculated Fresquez could have earned in a non-BNSF position.
Notably, it appears to be undisputed that Fresquez’s earning potential at BNSF was
higher than at any other non-BNSF position he could reasonably obtain. Indeed, because
78
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 79
BNSF is a unique employer, Fresquez’s BNSF position and the skills he gained while
working in that position cannot be replicated outside of BNSF. Therefore, Fresquez was
left to find analogous positions with non-railroad employers, and he ended up taking
positions as a building inspector.
Thus, in sum, the district court correctly awarded Fresquez front pay in lieu of
reinstatement and did not, as BNSF suggests, actually award him damages for loss of
future earnings capacity.
4) The amount of the front pay award
As part of its challenge to the district court’s award of front pay, BNSF also argues
that the district court abused its discretion by awarding an amount of front pay larger than
the district court’s equitable jurisdiction and the record permitted. Focusing first on what
it describes as the district court’s equitable jurisdiction, BNSF asserts that there is a
traditional limitation on equity practice that prohibits enforcement of what amounts to a
penalty. BNSF in turn argues that “[t]he front pay award here is ‘in the nature of a
penalty.’” Aplt. Br. at 63. BNSF asserts that “[a]n employer makes no ‘profit’ from
discharging an employee, who usually must be replaced, meaning that an award of wages
to the discharged employee requires the employer effectively to pay double for one
employee’s services.” Id. BNSF further argues that “[t]he reasons given by the district
court to justify ten years of front pay instead amount to punishing BNSF for being a good
employer that pays good wages, provides valuable benefits, teaches useful skills, and
offers good working conditions, including comparative job security, providing valued
79
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 80
employment in communities where equivalent work is hard to come by.” Id. “Those
circumstances,” BNSF argues, “are not ‘individualized’ to Fresquez” and instead
“describe the experiences of the vast majority of BNSF’s over 42,000 employees.” Id. at
64. “Awarding front pay on the basis adopted by the district court,” BNSF argues, i.e.,
“the desirable working conditions . . . BNSF offers[,] thus penalizes the company for
being a good employer, contrary to one of the absolute prohibitions of ‘traditional equity
practice.’” Id. In sum, BNSF argues that “[t]he front pay award to Fresquez was an
‘instrument of punishment’” because “it calibrated the payment amount to the
attractiveness of the economic terms and conditions of employment offered by BNSF.”
Id. at 65.
We reject BNSF’s arguments. The record on appeal makes quite clear that the
district court’s front pay award to Fresquez was not intended to penalize BNSF for its
conduct (the jury’s punitive damages award covered that objective), but rather to
compensate Fresquez for the immediate effects of BNSF’s unlawful termination of his
employment by approximating the salary and benefits Fresquez would have received had
he been reinstated and then worked for BNSF for approximately ten years. Although
BNSF complains that the district court effectively punished it for the “desirable working
conditions” and benefits that it offers to all of its employees, the record refutes that point.
Aplt. Br. at 64. The record, to be sure, confirms that the wages and benefits paid by
BNSF to its employees in the Denver area are higher than analogous non-railroad
positions available to those employees. That higher pay, however, appears to be
80
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 81
attributable, in part, to the fact that BNSF’s non-management employees are union
members who benefit from a collective bargaining agreement between BNSF and their
union. The record on appeal also establishes that BNSF earned a profit of approximately
$4 billion dollars in 2016 and, based at least in part on those profits, made a reasoned and
reasonable decision regarding how much to pay its union employees.
BNSF also fails to mention that the Ninth Circuit recently affirmed a similar, yet
more substantial front pay award to another BNSF employee who was wrongfully
terminated in retaliation for reporting a work-related injury. In that case, the plaintiff,
who like Fresquez presented expert testimony from Opps, was awarded “$1,407,978 for
lost wages and benefits in the future, reduced to present value . . . , for BNSF’s violation
of the FRSA.” Wooten v. BNSF Ry. Co., 387 F. Supp. 3d 1078, 1100 (D. Mont. 2019),
aff’d, 819 F. App’x 483 (9th Cir. 2020). Unlike in Fresquez’s case, the award in Wooten
was intended to cover the remainder of the plaintiff’s career. Id. at 1102 (noting that
Wooten expressed an “intent of working for BNSF until retiring between the ages of 60
and 67”). The district court noted in support of the front pay award that “BNSF is one of
the best-paying jobs available to individuals with limited education in Kalispell,
Montana, and Wooten loved the job and had ambitions within the company.” Id.Although BNSF argued on appeal that the district court abused its discretion in awarding
the plaintiff front pay, the Ninth Circuit rejected that argument:
Upon careful review, we conclude that the front pay award, although
for an extended period, does not constitute an abuse of discretion based on
the highly unusual, fact specific record before the court. Wooten had a
81
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 82
limited education and was from a small railroad town. He came from a
railroad family—his grandfather retired from the railroad—and worked at
one of the best paying jobs in the area. Notably, Wooten acquired at BNSF
a specific set of skills that were related only to the transportation industry.
After being dismissed in violation of the FRSA, Wooten was faced with an
essentially non-existent job market for comparable paying jobs.
Indeed, BNSF’s own expert confirmed that the job market was highly
unusual. The company’s vocational expert testified that Wooten had a highly
specialized set of skills derived from his work at BNSF; that the most he
could make working at another railroad would be $60,000 (compared to the
approximately $100,000 he had been making at BNSF); that it was unclear
whether another railroad would even be willing to hire him; and that his
insurance job was probably the best-paying job he could otherwise hope to
get. What’s more, it appears that the seniority Wooten had acquired at BNSF
ensured that he would actually get put on jobs with that employer, while his
lack of seniority at any other railroad might have rendered him unable to earn
a full-time salary. BNSF did not show that Wooten would be able to find a
comparable job at any point over his expected working career. Moreover,
given the salary Wooten earned at BNSF and the benefits associated with the
seniority that he enjoyed, Wooten would not have had any economically
rational reason to ever leave BNSF, making it far from speculative to find
that he would have stayed at the company until his retirement.
In the vast majority of cases, a plaintiff will be able to find a
comparable job within a few years, and for that reason, only a few years of
front pay will be sufficient to bridge the gap in earnings. But this is not a
typical situation. The district court’s findings supporting the front pay award
were not clearly erroneous, and the award was not an abuse of discretion.
Wooten, 819 F. App’x at 487. In our view, essentially the same analysis applies to
Fresquez’s case.
BNSF also argues that the district court abused its discretion in setting the end date
for the front pay award because, although the district court correctly “stated the standard
for ending front-pay eligibility as the plaintiff finding a job ‘comparable or superior’ to
the former employment, its analysis shows that in the court’s view only another railroad
82
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 83
job could qualify.” Aplt. Br. at 67 (citation omitted). Further, BNSF argues that the
district court “erred by treating it as established that Fresquez could never work again in
railroading.” Id. BNSF argues, however, that Fresquez’s own actions and testimony
establish that he made no efforts to obtain another railroad job and, instead, “considered
the three building-inspector jobs he obtained ‘substantially equivalent’ to or even
preferable . . . to returning to railroad work.” Id. at 68. Thus, BNSF argues, “[t]he
district court therefore abused its discretion by finding that the proper end date of the
front-pay award to Fresquez extended far beyond the date on which he took what was to
him ‘substantially equivalent’ employment.” Id. at 69.
BNSF failed, however, to present this same argument to the district court. In its
response to Fresquez’s motion for back and front pay, BNSF argued, in pertinent part,
that Fresquez had failed to make sufficient efforts to find other employment and thus
remained unemployed for certain periods of time between May 2016 and October 2017.
According to BNSF, Fresquez “should have been able to find full-time work in his
chosen field of building inspection within one to two months of his termination,” and that
the “median wage for construction and building inspection in the Denver metropolitan
area [was] $66,410.” Aplt. App., Vol. II at 386. But BNSF did not argue in that
response, as it does now in its appeal, that Fresquez considered building inspection
positions to be substantially equivalent employment and, for that reason, that no front pay
should be awarded. We therefore conclude that BNSF has waived this argument. See
83
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 84
Little v. Budd Co., 955 F.3d 816, 821 (10th Cir. 2020) (“[A]bsent extraordinary
circumstances, arguments raised for the first time on appeal are waived”).
IV. Affirmance of judgment of district court
The judgment of the district court is AFFIRMED.
84