Daniel Monohon v. BNSF Railway Company

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3346
___________________________
Daniel Monohon
lllllllllllllllllllllPlaintiff - Appellant
v.
BNSF Railway Company, a corporation
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: November 14, 2019
Filed: November 4, 2021
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
Daniel Monohon worked as a railroad track inspector for BNSF Railway
Company (BNSF) in southern Iowa. BNSF terminated his employment after
Monohon took the position that wearing a seatbelt while traveling in a hy-rail vehicle
was dangerous. Monohon thereafter filed suit, alleging that BNSF violated the
Federal Rail Safety Act (FRSA) when it discharged him for reporting, in good faith,
a hazardous safety condition. See 49 U.S.C. § 20109(b)(1)(A). The district court
denied BNSF’s motion for summary judgment, and the case proceeded to trial.
A jury found in favor of Monohon and awarded back pay. The district court
denied Monohon’s request for reinstatement and instead awarded three years of front
pay. The district court thereafter granted BNSF’s motion for judgment as a matter of
law, concluding that Monohon’s “claim to have reported a hazardous safety condition
is not objectively reasonable and is not supported by the facts of this case.” D. Ct.
Order of Oct. 1, 2018, at 3–4. We vacate the judgment in favor of BNSF, reverse the
order granting BNSF’s motion for judgment as a matter of law, and remand for the
reinstatement of the jury verdict and for the entry of such further relief as is consistent
with the views set forth in this opinion.
I. Background
A hy-rail is a pickup truck that can operate both on pavement and on railroad
tracks. It is equipped with conventional truck wheels with rubber tires, as well as
with flanged steel wheels that fit on tracks. To set a hy-rail on tracks, a track
inspector drives to a crossing, lines up the rail wheels with the track, and then uses
the hy-rail’s hydraulic system to lower the rail wheels onto the tracks. The inspector
thereafter raises the truck wheels and locks the steering wheel. Once a hy-rail is “set
on,” it does not require steering because the rail wheels follow the tracks. Monohon
testified that he operated his hy-rail at speeds ranging from a walking speed to twenty
miles per hour. With their steel wheels on steel tracks, hy-rails cannot stop quickly,
particularly when the tracks are lubricated with oil or precipitation. A hy-rail can be
removed from the tracks only at crossings, at which the inspector lowers the truck
wheels, raises the rail wheels, unlocks the steering wheel, and drives away.
Hy-rails have seatbelts like any pickup truck. BNSF requires its employees to
wear seatbelts when they operate hy-rails, with its rules instructing employees to
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“[w]ear seat belts while operating or riding in equipment or vehicles that are equipped
with them.” BNSF did not consistently enforce the seatbelt rule, however, and BNSF
employees did not always wear seatbelts while hy-railing. Before Monohon’s
termination, BNSF did not treat the failure to wear a seatbelt as a serious rules
violation. BNSF instead had treated the failure to wear a seatbelt as an “operations
test failure,” with the discipline being coaching or counseling on the rule.
During a conference call on September 4, 2012, Roadmaster Tyson Pate
reiterated the seatbelt rule, reminding his employees that they were required to wear
seatbelts when operating hy-rails. Pate explained that there recently had been two
serious accidents involving BNSF hy-rails running into the back of trains. A track
inspector operating a hy-rail had died in a July 2012 collision, and another track
inspector had been badly injured in an August 2012 collision. Neither inspector had
been wearing his seatbelt at the time of his accident.
After hearing Pate’s directive and briefing, Monohon expressed his concern
about wearing a seatbelt while hy-railing, saying, “I just don’t feel the seat belt rule
is safe. . . . [I]f there’s a train coming down the tracks at you and you don’t have a
chance to bail out, what’s going to happen? You’re going to get killed.” Pate
responded that he understood the concern, but that the seatbelt rule must be followed.
According to Monohon, Pate did not mention that a seatbelt rule violation would be
treated as a serious rules violation, nor was there any discussion regarding possible
discipline. Monohon completed his regular work day after the conference call ended.
Monohon was tasked with moving slow order boards the next day. Slow order
boards are trackside postings that indicate when a train must slow down and when it
is safe to resume full speed. Monohon set his hy-rail on the tracks and traveled west.
He exited and entered his hy-rail several times as he adjusted the boards.
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Monohon stopped his hy-rail after being waved down by Steve Anderson, who
was then Line Chief, and Michael Paz, who was then Assistant Roadmaster. When
Anderson remarked that Monohon was not wearing his seatbelt, Monohon looked
down and realized that he was not doing so. Anderson testified that Monohon
seemed surprised. Monohon admitted his oversight to Anderson, explaining that he
had fastened his seatbelt when he entered his hy-rail that morning, but that he had
been in and out of his hy-rail several times that day. Anderson mentioned the recent
hy-rail accidents and asked Monohon to fasten his seatbelt, which he did.
After telling Monohon that he would receive an operations test failure,
Anderson asked Monohon to commit to wearing the seatbelt in the future. Monohon
replied that he worried that his fastened seatbelt would prevent him from being able
to quickly bail out of the hy-rail if a train approached. At that point, Anderson ended
the conversation and sent Monohon home for the day. Anderson testified at trial that
Monohon did not raise his voice, become argumentative, or disobey any orders during
their conversation. After sending Monohon home, Anderson emailed Timothy
Knapp, who was then Director of Line Maintenance. Anderson explained that he had
stopped Monohon, who had not been wearing his seatbelt, and that although they
“had a good discussion, . . . it became apparent any compliance around system
expectations was going to be a struggle.”
Knapp decided to initiate a formal investigation and to withhold Monohon
from service. The purpose of the investigation was to determine whether Monohon
had failed to wear his seatbelt and whether he had been “insubordinat[e] towards an
officer while discussing the alleged violation on September 5, 2012.” According to
BNSF, insubordination toward an officer is an “act of willfully disobeying an
authority.”
Pate, Paz, and Monohon testified at the investigative hearing. Pate testified
that he himself had “been guilty . . . of hy-railing without a seatbelt on,” but that
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everyone was required to follow the seatbelt rule after the September 4 briefing. Pate
explained that Monohon believed that it was unsafe for him to wear his seatbelt, but
never said that he would not follow the seatbelt rule. According to Paz, Monohon
was not insubordinate, but was removed from service because he did not fully commit
to wearing his seatbelt in the future. Monohon testified that he had told Anderson
that he disagreed with the rule, because he would be unable to bail out of the hy-rail
if a train approached, but that he understood that “we have to wear [seatbelts] and
that’s fine. I’m okay with that.” The hearing officer found that “[b]y engaging in a
discussion with Mr. Andersen (sic) about his objection to the [seatbelt] rule, Mr.
Monohon increased his culpability from being ‘minor oversight’ as argued by the
[union] to the more serious charge of insubordination.” The hearing officer
recommended that Monohon be suspended or dismissed.
After reviewing the transcript and exhibits, considering the hearing officer’s
findings and recommendations, and discussing discipline with other management
personnel, Knapp decided to terminate Monohon for failing to wear his seatbelt and
for insubordination towards Anderson. Knapp believed that Monohon’s failure to
wear a seatbelt was a serious rules violation and that his failure to commit to wearing
his seatbelt constituted insubordination. When asked whether he had intentionally
retaliated against Monohon for raising his concern about being unable to bail out of
a hy-rail, Knapp replied, “No.”
Monohon filed suit in federal district court. In its motion for summary
judgment, BNSF argued that Monohon had not reported a hazardous safety condition
but had instead objected to a longstanding safety rule. BNSF claimed that allowing
Monohon’s claim to proceed would hamper the railroad’s ability to enforce its safety
rules, giving as an example the following hypothetical situation:
[A]n employee disagrees with the railroad’s rule requiring him to wear
a hard hat. His rationale: vision and alertness are hampered by the hard
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hat. If Plaintiff’s argument is accepted, this employee can run to the
courts when he is disciplined for failing to wear a hard hat in violation
of the railroad’s rule.
BNSF further argued that Monohon’s willingness to wear a seatbelt “negate[d] any
contention that wearing a seatbelt could be reasonably construed as a hazardous
safety or security condition.” In denying the motion, the district court found BNSF’s
example inapposite because Monohon had allegedly reported a hazardous safety
condition and had not refused to follow the rule. The court concluded that the statute
did not require Monohon’s report to be correct or objectively reasonable.
During the subsequent four-day jury trial, Monohon presented evidence that
wearing a seatbelt when hy-railing constitutes a hazardous safety condition because
it delays or prevents the seatbelt-restrained person from bailing out of the hy-rail.
BNSF presented evidence that its seatbelt rule ensures the safety of its employees
because seatbelts prevent injury and death. The district court denied BNSF’s motion
for judgment as a matter of law, which argued that Monohon had failed to identify
any hazardous safety condition.
The court instructed the jury that “[t]he plaintiff reported a hazardous safety
condition in good faith if, at the time he made the report, he genuinely believed he
was reporting a hazardous safety condition.” BNSF’s proposed jury instructions did
not address the meaning of “hazardous safety condition,” nor did BNSF object to this
portion of the instruction.
During its closing argument, BNSF argued that Monohon had not reported a
hazardous safety condition, but rather a hypothetical concern that he had imagined:
A hypothetical is not a condition. A condition must exist. A condition
must be something you can see. A condition must be something you can
report to the railroad. A condition must be something the railroad can
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fix. . . . Expressing a concern about a hypothetical is not reporting a
hazardous safety condition.
The jury’s May 20, 2016, verdict rejected BNSF’s argument, finding instead that
Monohon had “reported, in good faith, a hazardous safety condition” and that BNSF
would not have terminated Monohon’s employment had he “not reported a hazardous
safety condition.” It awarded Monohon $500,000 in lost wages, lost benefits, and
emotional distress damages. The district court’s December 27, 2016, orders awarded
front pay in the amount of $301,734, as well as attorneys’ fees and costs. Judgment
was entered a few days later.
BNSF renewed its motion for judgment as a matter of law and moved, in the
alternative, for a new trial on January 24, 2017. The district court granted BNSF’s
motion in October 2018, concluding that Monohon’s report was not objectively
reasonable and that the jury’s verdict was not supported by the evidence. “The
plaintiff simply did not want to wear his safety belt while hy-railing for the BNSF.”
D. Ct. Order of Oct. 1, 2018, at 4. The court ruled that it would have granted a new
trial, had it not granted BNSF judgment as a matter of law. It set aside the December
30, 2016, judgment in favor of Monohon and ordered that judgment be entered in
favor of BNSF.
II. Discussion
A. Timeliness
Monohon argues that BNSF’s renewed motion for judgment as a matter of law
was untimely. Under Federal Rule of Civil Procedure 50(b), a movant must file any
renewed motion for judgment as a matter of law “[n]o later than 28 days after the
entry of judgment.” Rule 58(a) requires that “[e]very judgment . . . be set out in a
separate document.” The district court ordered that judgment be entered after the
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court had denied reinstatement and instead had awarded front pay. The clerk of court
entered judgment by separate document on December 30, 2016. BNSF’s January 24,
2017, renewed motion thus fell within Rule 50(b)’s 28-day time period.
We reject Monohon’s argument that judgment was entered as a matter of
course on October 17, 2016—150 days after the jury’s verdict was recorded on the
docket. Under Rule 58(c)(2), when no separate document is filed, judgment “is
deemed ‘entered’ 150 days after the dispositive order was entered on the civil
docket.” Osher v. City of St. Louis, 903 F.3d 698, 701 (8th Cir. 2018) (quoting
Jeffries v. United States, 721 F.3d 1008, 1012 (8th Cir. 2013)). Even assuming that
a jury verdict could trigger Rule 58(c)(2)’s time period, the verdict here could not
have done so because the jury did not decide all of the issues in the
case—specifically, Monohon’s request for reinstatement. See Bankers Tr. Co. v.
Mallis, 435 U.S. 381, 384 n.4 (1978) (“A ‘judgment’ for purposes of the Federal
Rules of Civil Procedure would appear to be equivalent to a ‘final decision’ as that
term is used in 28 U.S.C. § 1291.”); Patterson v. City of Omaha, 779 F.3d 795, 800
(8th Cir. 2015) (“A final decision is ordinarily one which disposes of all the rights of
all the parties to an action.” (internal quotation marks and citation omitted)); Dieser
v. Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006) (“A final decision within the
meaning of § 1291 ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.” (internal quotation marks and citation omitted)).
Judgment thus was not entered as a matter of course under Rule 58(c)(2), and BNSF’s
renewed motion was timely.
B. Renewed Motion for Judgment as a Matter of Law
Monohon argues that the district court erred in granting BNSF’s renewed
motion for judgment as a matter of law. We review de novo the grant of a renewed
motion for judgment as a matter of law, viewing the evidence in the light most
favorable to the verdict. See S. Wine & Spirits of Nev. v. Mountain Valley Spring
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Co., 646 F.3d 526, 533 (8th Cir. 2011). “Judgment as a matter of law is only
appropriate when no reasonable jury could have found for the nonmoving party.” Id.In reviewing the district court’s decision, “we may not weigh the credibility of
evidence, and conflicts in the evidence must be resolved in favor of the verdict.” Id.The FRSA prohibits railroads from retaliating against their employees for
“reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C.
§ 20109(b)(1)(A). To decide this appeal, we must discern the meaning of the
statutory language and determine whether there existed a “legally sufficient
evidentiary basis to find” that BNSF violated the statute. See Fed. R. Civ. P. 50(a)(1).
As set forth above, the district court determined that the statute required Monohon’s
report to be objectively reasonable and that Monohon had failed to prove that it was
indeed so.
As an initial matter, the statute requires only that the employee report “in good
faith,” meaning “honestly and frankly, without any intent to defraud.” See Acting in
Good Faith, Black’s Law Dictionary (11th ed. 2019). The statute’s plain language
thus does not require that the report be objectively reasonable, and we decline to read
a reasonableness requirement into the “reporting, in good faith” provision. See
Ziparo v. CSX Transp., Inc., 15 F. 4th 153, 155 (2d Cir. 2021) (holding that “‘good
faith’ as used in the FRSA requires only that the reporting employee honestly believe
that what she reports constitutes a hazardous safety or security condition”).
The statute indicates that Congress purposefully omitted a reasonableness
requirement from the reporting provision. For example, the refusal-to-work provision
that immediately follows the reporting provision requires objective reasonableness.
That provision prohibits retaliation against an employee for “refusing to work when
confronted by a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(B).
An employee’s refusal is protected only if it “is made in good faith and no reasonable
alternative to the refusal is available,” Id. § 20109(b)(2)(A), and:
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(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
....
Id. § 20109(b)(2)(B). The refusal-to-work provision’s explicit requirement of
reasonableness reflects Congress’s decision to omit reasonableness in the reporting
provision. Had Congress intended the FRSA to protect only objectively reasonable
reports of hazardous safety conditions, it would have done so expressly.1 See
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” (alteration in original) (citation omitted));
Ziparo, 15 F.4th at 161 (“Had Congress intended to include an objective
reasonableness requirement in § 20109(b)(1)(A), it knew how to do so. But it did not
include that requirement.”).
This broad anti-retaliation protection for good faith reports accords with the
statute’s purpose. The FRSA was enacted to “promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101.
It empowers employees to make good faith reports of hazardous safety conditions
without fear of retaliation. Such reports may prompt the railroad to take action to
1
The FRSA’s anti-retaliation provision for “refusing to authorize the use of any
safety-related equipment” also includes a reasonableness requirement. See 49 U.S.C.
§§ 20109(b)(1)(C) and (b)(2)(A)–(B).
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remedy the condition. Such reports alternatively could result in the expenditure of
management’s time in explaining to the reporting employee why a condition is
actually safe or in investigating a reported condition, only to find that all is in good
order. E.g., Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014) (railroad
investigated an employee’s report, found that the condition was safe, and closed the
investigation). As the statute makes clear, however, Congress decided that the
benefits of protecting these good faith reports outweighed any cost of their protection.
See Neal v. Honeywell, Inc., 33 F.3d 860, 862 (7th Cir. 1994) (“The text of the law
is not just evidence about how much one interest (here, the government’s in obtaining
information by relieving employees of fear) should be preferred over another (here,
the employer’s in managing its labor force); the text is the decision about what to
do—a decision approved by the Constitution’s own means, bicameral approval and
presidential signature.”).
We agree with the Court of Appeals for the Second Circuit’s recent decision
in Ziparo v. CSX Transportation, Inc., that “a mere report of a putative safety
violation to the railroad itself, even if mistaken, imposes no meaningful costs on the
railroad.” 15 F.4th at 162. The FRSA’s protection of a reporting employee likewise
imposes no “unreasonable burdens or costs” because the statute does not require the
railroad to take remedial action in response to the employee’s report “or even to
investigate the reported condition.” Id. at 162–63; see 49 U.S.C. 20109(b)(1)(A).
We adopt Ziparo’s conclusion that:
If the railroad concludes that the report does not really create a safety or
security concern, it remains free to dismiss the report entirely. To avoid
liability, it need only refrain from punishing the employee making the
report.
15 F.4th at 163.
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Section 20109(b)(1)(A) protects an employee who makes a good faith report;
the employee is not entitled to stop working. Should that occur the employee’s
conduct would fall within the refusal-to-work provision, with its higher standard and
multiple conditions to FRSA anti-retaliation protection. See 49 U.S.C.
§§ 20109(b)(1)(B), 20109(b)(2)(A)–(C). As explained above, for protection under
the FRSA, an employee who refuses to work must be confronted by a hazardous
safety condition related to the performance of the employee’s duties. The refusal
must be made in good faith, and the employee must have no reasonable alternative
to refusing to work. Moreover, the refusal-to-work provision requires objective
reasonableness—that a reasonable individual would conclude that the hazardous
condition presents an imminent danger of death or serious injury that is so urgent
there is no time to eliminate the danger. Congress weighed the higher cost of an
employee’s refusal to work—which results in staffing issues and disruption of the
work day—against the benefit of such refusal, ultimately deciding to provide anti-
retaliation protection only in limited, serious, and time-sensitive circumstances. The
FRSA thus “does not throw one set of interests to the winds in order to protect the
other; it is a compromise between them. And it should not be surprising that
Congress has struck the balance in different ways at different times.” Neal, 33 F.3d
at 863.
To the extent BNSF argues that the FRSA anti-retaliation provision should be
read to include an objective reasonableness component because one is included
within the Sarbanes-Oxley Act’s anti-retaliation provision, we note the differences
in the statutory language. The Sarbanes-Oxley Act protects against retaliation
because of “any lawful act done by the employee . . . to provide information . . .
regarding any conduct which the employee reasonably believes constitutes a
violation” of certain federal laws and regulations. 18 U.S.C. § 1514A(a)(1)
(emphasis added). Unlike the FRSA, then, the plain language of the Sarbanes-Oxley
Act requires a reasonable belief. See also 12 U.S.C. § 5567(a)(1) (provision in the
Consumer Protection Act forbidding retaliation against an employee for providing
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information “that the employee reasonably believes to be a violation of” certain
federal laws).
Having concluded that the reporting provision does not contain an objective
reasonableness requirement, we turn to BNSF’s argument that Monohon did not
report a hazardous safety condition. BNSF contends that the statute requires an
existing, physical, tangible hazardous safety condition that can be remediated.
We first consider the word “condition.” As used in the FRSA’s anti-retaliation
provisions, the ordinary meaning of “condition” is “a state of being.” Condition,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2014). According to Monohon’s
theory of the case, the condition at issue here was that of wearing a seatbelt while hy-
railing. Wearing a seatbelt was a state of being that also met BNSF’s definition
because it existed, was physical and tangible, and was capable of being remedied.
See Ziparo, 15 F.4th at 164 (rejecting the railroad’s argument that the FRSA protects
only “reports of physical conditions” and explaining that the FRSA protection is
limited to conditions that “involv[e] the operation of the railroad” and that are “within
the control of the railroad to remedy”).
BNSF argues that the statute requires evidence of an “actual” hazardous safety
condition, i.e., proof that the danger presented by the condition had been realized.
E.g., Foster v. BNSF Ry. Co., 866 F.3d 962, 964, 968 (8th Cir. 2017) (employees
reported unsafe bridge conditions after seeing crew member fall off the bridge to the
road below). The statute does not require that an accident or injury have occurred,
however. In the above-cited Kuduk v. BNSF Railway Co. case, an employee invoked
the railroad’s Safety Issue Resolution Process (SIRP), reporting “that a flop-over
handle used to derail cars was too heavy and could cause employee back injuries.”
768 F.3d at 789. There was no mention that the handle actually had caused injury,
but we nonetheless held that there was a factual dispute whether the report constituted
a report of a hazardous safety condition. See id. at 790. (“Kuduk testified that he
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made the report because he ‘was concerned that someone could hurt their back in
trying to lift [the handle],’ and the SIRP records would permit a reasonable jury to
find that BNSF understood Kuduk’s complaint regarding the handle to be, at bottom,
a safety report.” (alteration in original)). The present case likewise presented a
question of fact: Was Monohon’s report regarding the danger of wearing a seatbelt
while hy-railing a report of a hazardous safety condition? The jury found that it was.
We conclude that there existed a “legally sufficient evidentiary basis to”
support the jury’s finding. Monohon presented evidence to support the following
facts. Track inspectors are taught to expect a train at any time from any direction.
Sight lines and track curvature can make it difficult to discern which track a train is
using. Hy-rails cannot swerve from the tracks, nor can they be stopped quickly.
Although both trains and hy-rails are supposed to operate within the boundaries
authorized by the railroad, errors and misunderstandings cause trains and hy-rails to
be outside their authority (i.e., railroad speak for being in an area or traveling in a
direction they have not been given permission to be in or in which to travel). There
have been incidents of hy-rails colliding with or nearly colliding with trains, because
either the hy-rail or the train was outside its authority. Wearing a seatbelt while hy-
railing can impede an inspector’s ability to bail out of a hy-rail. Considering the
evidence and all reasonable inferences in favor of Monohon, we cannot conclude that
there was “a complete absence of probative facts” such that no reasonable juror could
have found that wearing a seatbelt while hy-railing is a hazardous safety condition.
See Lavender v. Kurn, 327 U.S. 645, 653 (1946); cf. Gateway Coal Co. v. United
Mine Workers of Am., 414 U.S. 368, 385–87 (1974) (union failed to present any
objective evidence of abnormally dangerous condition); NLRB v. Fruin-Colnon
Constr. Co., 330 F.2d 885, 892 (8th Cir. 1964) (no substantial evidence of abnormally
dangerous condition when evidence consisted only of “isolated testimony of the
alleged discriminatees and unreasonable inferences”).
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We also conclude that the evidence was sufficient to support the finding that
Knapp intentionally retaliated against Monohon. Knapp testified that he terminated
Monohon for not wearing his seatbelt and for being insubordinate. Knapp considered
the hearing officer’s report, which found that Monohon was insubordinate for
reporting his seatbelt concern to Anderson. Monohon also presented evidence that
BNSF had not terminated employees for violating the seatbelt rule, that he had not
disobeyed any orders, and that he had not acted in an incorrigible manner when he
raised his safety concern with Anderson. A reasonable jury thus could find that
Knapp intended to retaliate against Monohon for reporting, in good faith, a hazardous
safety condition.
Because we cannot say that “all of the evidence points in one direction and is
susceptible to no reasonable interpretation supporting the jury verdict,” Hunt v. Neb.
Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002) (citation omitted), we
conclude that the district court erred in granting BNSF’s renewed motion for
judgment as a matter of law. It is “immaterial that [we] might draw a contrary
inference or feel that another conclusion is more reasonable.” Lavender, 327 U.S. at
653.
C. New Trial
Monohon argues that the district court abused its discretion in granting BNSF’s
conditional motion for a new trial under Federal Rule of Civil Procedure 59. Bank
of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841, 851 (8th Cir. 2014) (standard of
review). “A new trial is warranted when the outcome is against the great weight of
the evidence so as to constitute a miscarriage of justice.” Id. In its order granting the
conditional motion, the district court changed its view of the law from its initially
correct determination that the statute requires only a good faith report to its
determination that the statute required an objectively reasonable report. The case had
been submitted to the jury under the proper view of the law, however. See Ziparo,
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15 F.4th at 163 (“[W]e are confident that judges and juries can determine whether a
condition meets that [hazardous safety] standard based on the particular facts of the
cases before them while taking the FRSA’s remedial purpose into account.”). When
the evidence is considered in light of the fact that the statute does not require
objective reasonableness, we conclude that the district court abused its discretion in
granting a new trial. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)
(a district court abuses its discretion when “it base[s] its ruling on an erroneous view
of the law”); Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999) (“On
a motion for new trial, the district court is entitled to interpret the evidence and judge
the credibility of witnesses, but it may not usurp the role of the jury by granting a new
trial simply because it believes other inferences and conclusions are more
reasonable.”).
D. Damages
Monohon argues that the district court erred in awarding front pay because the
FRSA mandates reinstatement. We typically review for abuse of discretion a district
court’s decision to order front pay, “because reinstatement, or front pay in lieu of
reinstatement, are forms of equitable remedies.” See Townsend v. Bayer Corp., 774
F.3d 446, 464 (8th Cir. 2014) (footnote omitted). An employee who prevails in a
FRSA action, however, “shall be entitled to all relief necessary to make the employee
whole.” 49 U.S.C. § 20109(e)(1). That relief “shall include” reinstatement. Id.§ 20109(e)(2)(A). “A statute’s use of the word ‘shall’ normally deprives a court of
discretion in the matter referenced.” Townsend, 774 F.3d at 464. We conclude that
the FRSA unambiguously requires reinstatement. See Halliburton, Inc. v. Admin.
Rev. Bd., 771 F.3d 254, 264 (5th Cir. 2014) (per curiam) (considering identical
language in the Sarbanes-Oxley Act and determining that the statute “affords ‘all
relief necessary to make the employee whole’ and such relief ‘shall include,’ but is
not limited to, reinstatement, back pay, and certain ‘special damages’” (internal
citations omitted)).
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This requirement is not absolute, however. BNSF has pointed to examples in
which reinstatement would not be possible: if the employee were incapacitated or in
prison or if the employer were to have closed its United States operations. Appellee’s
Br. 54. In those types of cases, the statute gives the district court discretion to award
whatever relief is “necessary to make the employee whole.” 49 U.S.C. § 20109(e)(1).
Moreover, this is not a case, like those BNSF has cited, in which the plaintiff
requested or did not challenge an award of front pay. E.g. Deltek, Inc. v. Dep’t of
Lab., 649 F. App’x 320, 333 (4th Cir. 2016) (unpublished) (considering relief under
the Sarbanes-Oxley Act) (“Neither party has appealed the threshold determination
that front pay and not reinstatement was the proper remedy in this case, and so the
only issue before us is the calculation of the front pay award.”). Accordingly, we
instruct the district court to reconsider on remand Monohon’s request for
reinstatement.
Conclusion
We vacate the judgment in favor of BNSF. We reverse the order granting
BNSF’s renewed motion for judgment as a matter of law. We remand the case for the
reinstatement of the jury’s verdict and for the entry of such further relief as is
consistent with the views set forth in this opinion.
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