                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL A. FROST,                     No. 17-35513
         Plaintiff-Appellant,
                                        D.C. No.
             v.                   9:15-cv-00124-DWM

BNSF RAILWAY COMPANY,
       Defendant-Appellee.                 OPINION


    Appeal from the United States District Court
            for the District of Montana
  Donald W. Molloy, Senior District Judge, Presiding

        Argued and Submitted October 9, 2018
                Seattle, Washington

                  Filed January 30, 2019

   Before: Ferdinand F. Fernandez, N. Randy Smith,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2                          FROST V. BNSF

                            SUMMARY*


                             Labor Law

    The panel reversed the district court’s judgment, after a
jury trial, in favor of the defendant in an action under the
Federal Railroad Safety Act and remanded for a new trial.

    Michael Frost alleged that BNSF Railway Co. violated
the FRSA when it disciplined and ultimately terminated him
after he committed a pair of safety rule violations and filed an
injury report. At trial, the district court instructed the jury
that BNSF could not be liable if it terminated Frost due to an
“honest belief” that he violated the company’s safety rules.

    The panel held that the “honest belief” jury instruction
was inconsistent with the FRSA’s clear statutory mandate
and prior caselaw. To establish a claim of unlawful
discrimination under the FRSA, a plaintiff must prove by a
preponderance of the evidence that his protected conduct was
a contributing factor in an adverse employment action. The
panel held that there is no separate requirement that the
plaintiff prove that his employer acted with discriminatory
intent. Rather, by proving that an employee’s protected
activity contributed in some way to the employer’s adverse
conduct, the FRSA plaintiff has proven that the employer
acted with some level of retaliatory intent. The panel held
that the “honest belief” jury instruction therefore misstated
the applicable law, and BNSF did not rebut the presumption


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      FROST V. BNSF                         3

of prejudice. Accordingly, the panel reversed the district
court’s determination and remanded for a new trial.


                        COUNSEL

Lucas J. Kaster (argued) and James H. Kaster, Nichols Kaster
LLP, Minneapolis, Minnesota, for Plaintiff-Appellant.

Bryan P. Neal (argued), Thompson & Knight LLP, Dallas,
Texas; Keith M. Gorman, Hall & Evans LLC, Denver,
Colorado; Paul S. Balanon, General Attorney, BNSF Railway
Company, Fort Worth, Texas; for Defendant-Appellee.


                         OPINION

CHRISTEN, Circuit Judge:

     Michael Frost sued the BNSF Railway Company, alleging
that it violated the Federal Railroad Safety Act (FRSA) when
it disciplined and ultimately terminated him after he
committed a pair of safety rule violations and filed an injury
report. At trial, the district court instructed the jury that
BNSF could not be liable if it terminated Frost due to an
“honest belief” that he violated the company’s safety rules.
The jury returned a verdict for BNSF. We review the
propriety of the “honest belief” jury instruction. Because it
is inconsistent with the FRSA’s clear statutory mandate and
our prior caselaw, we reverse and remand for a new trial.
4                      FROST V. BNSF

                               I.

    BNSF is a large railway company that operates freight
trains throughout the United States. Due to the many
potential hazards associated with powerful locomotives
operating near train and track workers, BNSF imposes a
number of safety rules on its employees to minimize risks and
prevent injuries. Among other things, those rules prohibit
employees from approaching—or “fouling”—a track unless
they have the proper authority and a work-related reason to be
near the tracks.

    BNSF hired Frost as a track laborer in June 2011. Within
the first two years of his employment, Frost was disciplined
twice for fouling the track. The first violation occurred on
April 18, 2012. Frost was working with a crew that was
repairing a section of track near Brimstone, Montana. The
crew was removing and replacing a side track that ran
adjacent to a main line. The crew members secured track
authority—i.e., permission to be near the tracks because no
trains would be running on the tracks—for both tracks at the
start of their shift in order to move their equipment into
position on the side track. The crew’s foreman, George
Schultz, released the crew’s track authority for the main line
once the equipment was in place on the side track, but he
apparently failed to relay that information to Frost or the rest
of the work crew.

    During the course of the shift, Frost believed that the
repair equipment was not being anchored properly so he
moved toward the main line track to get a better view. At that
point, a train traveling approximately 60 miles per hour
passed by on the main line, narrowly missing Frost. The
crew stopped working and Frost was taken to the hospital for
                            FROST V. BNSF                                   5

examination. On April 20, 2012, BNSF issued a notice of
investigation to Frost and Schultz regarding the near-miss
incident. Frost returned to work a few days later and filed an
injury report describing his injury as “PTSD following a
traumatic incident.”

    BNSF held a disciplinary hearing in July 2012. Frost
argued at the hearing that he was being singled out because
several of his fellow laborers (who had not filed injury
reports) acknowledged that they were also near the track but
they were not disciplined. Frost also claimed that inspecting
the equipment’s anchoring pattern was a legitimate job-
related reason for approaching the main line. The hearing
officer, Robert Rindy, rejected both arguments. Rindy
reviewed video from the train which showed no other
laborers near the main line track. He also concluded that
Frost could have checked the anchoring pattern from other
locations without approaching the main line track. Because
Rindy determined that Frost fouled the track and committed
a Level S (Serious) safety violation, Frost received a 30-day
record suspension and was placed on a 36-month review
period for that incident.1 On October 9, 2012, Frost
responded by filing an FRSA retaliation complaint with
OSHA.

    Frost’s second track violation occurred on November 8,
2012, when he was working on a crew in Wyoming as a
grapple truck driver. Frost arrived at the work site and parked
his truck by a railroad crossing with the back end of the truck
overhanging the track. Frost then entered a trailer where
several other BNSF employees were located, and apparently
said something like “I guess I better get the authority since

   1
       Schultz, the crew foreman, was also disciplined for this incident.
6                     FROST V. BNSF

I’m already fouling the track.” Because BNSF employees are
required to know the precise details of their track authority
before fouling a track, the other employees became concerned
and a supervisor was called. The supervisor spoke with Frost
and determined that he did not appear to have secured track
authority before parking his truck. The supervisor removed
Frost from service and reported the incident to Keith
Samples, a division manager.

    BNSF issued a notice of investigation and conducted a
hearing regarding the second incident in January of 2013.
Following the hearing, Samples found that Frost did not know
the details of his track authority and that he had violated
BNSF safety rules. Samples then concluded that Frost should
be discharged due to the seriousness of the violation and the
fact that it occurred so soon after the first disciplinary
incident. It is undisputed that Frost would not have been
discharged if the first incident had not occurred.

    Frost requested reinstatement. After an internal review,
BNSF decided to reinstate Frost, due to a concern that BNSF
would not be able to justify the discipline imposed for the
April 2012 incident if Frost challenged his dismissal before
an arbitrator. Frost was reinstated, with back pay, and BNSF
removed the April 2012 disciplinary incident from his record.

    Nevertheless, Frost filed suit in September of 2015
alleging retaliation under the FRSA for Frost’s engagement
in protected activities—i.e., for reporting the PTSD injury
following the first incident and for filing an OSHA complaint
alleging disciplinary retaliation shortly thereafter. Frost’s
complaint alleged that these protected activities were
contributing factors to BNSF’s decision to terminate him, and
                        FROST V. BNSF                           7

he sought an award of emotional distress damages, punitive
damages, and attorney’s fees.

    The matter was tried to a jury over four days. At trial,
Rindy testified that he disciplined Frost because such
discipline was required by BNSF’s employee performance
accountability policy, and not because Frost had filed an
injury report or engaged in any other protected activities.
And Samples testified that when he decided in 2013 that Frost
should be discharged, he was not aware that Frost had filed an
OSHA complaint concerning the first incident. At the close
of the evidence, the trial court instructed the jury, over Frost’s
objection, that:

        BNSF cannot be held liable under the Federal
        Railroad Safety Act if you conclude that
        defendant terminated plaintiff’s employment
        based on its honestly held belief that plaintiff
        engaged in the conduct for which he was
        disciplined.

The jury returned a verdict in favor of BNSF.

     Frost moved for a new trial, arguing that the honest belief
jury instruction was erroneous and that it substantially
prejudiced him. He also argued the he deserved a new trial
because BNSF improperly withheld evidence regarding a
potential retaliatory motive for terminating him—a
“scorecard” policy that rated each manager, in part, on the
number of injuries that occurred on his or her watch. The
trial court acknowledged that BNSF appeared to “have hidden
the ball” by not producing the scorecard policy in discovery,
but it found no prejudice. The district court was also
8                           FROST V. BNSF

unpersuaded by Frost’s challenge to the honest belief
instruction. Frost appealed.2

                                    II.

    We review de novo whether a jury instruction properly
states the elements that must be proved at trial. Chuman v.
Wright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is
erroneous when, viewing the instructions as a whole, the
“substance of the applicable law was [not] fairly and correctly
covered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d
1336, 1339 (9th Cir. 1986) (alteration in original and citation
omitted). If there is an error, we presume that the error was
prejudicial and the non-moving party bears the burden of
establishing that “it is more probable than not” that a properly
instructed jury “would have reached the same verdict.”
Galdamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)
(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.
2005)) (internal quotation marks omitted).

                                    III.

    We first examine the appropriate standards governing a
claim of unlawful discrimination under the FRSA. As we
recently explained in Rookaird v. BNSF Railway Co.,
908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the




    2
     Because we reverse the district court’s denial of Frost’s request for
a new trial on the basis of the erroneous honest belief jury instruction, we
do not address Frost’s claim that he is also entitled to a new trial because
BNSF withheld relevant and material documents in discovery.
                           FROST V. BNSF                                 9

AIR-213 framework set forth in 49 U.S.C. § 42121(b) for
claims of unlawful discrimination. Id. at 459.4

    To establish a claim of unlawful discrimination under
the FRSA, the plaintiff must prove by a preponderance of
the evidence that his or her protected conduct “was a
contributing factor in the unfavorable personnel action
alleged in the complaint.” Id. at 460 (citing 49 U.S.C.
§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,
which alone or in connection with other factors, tends to
affect in any way the outcome of the decision.” Rookaird,
908 F.3d at 461 (internal quotation marks omitted). If the
plaintiff succeeds, the employer can attempt to rebut the
allegations and defeat the claim by demonstrating “by clear
and convincing evidence that the employer would have taken
the same unfavorable personnel action in the absence of [the
protected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).

    Importantly, the only burden the statute places on FRSA
plaintiffs is to ultimately prove, by a preponderance of the
evidence, that their protected conduct was a contributing
factor to the adverse employment action—i.e., that it


    3
       “AIR-21” refers to the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61
(2000), which includes protections for whistleblowers and prohibits
discrimination against an air carrier employee who reports information
related to air carrier safety. Congress expressly adopted the same standard
for the FRSA. 49 U.S.C. § 20109(d)(2).
    4
      We are aware that under this framework there are two stages, a
prima facie stage and a substantive stage. We are here concerned
primarily with the substantive stage, as this appeal causes us to consider
only whether the honest belief instruction altered the substance of what
needed to be proven at trial.
10                      FROST V. BNSF

“tend[ed] to affect” the decision in some way.                Id.
§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.

    BNSF argues that the FRSA is a “discrimination statute”
and that plaintiffs must therefore affirmatively prove that
their employers acted with discriminatory intent or animus in
order to bring claims for unlawful retaliation. We recognize
that the FRSA, by its terms, describes and forbids intentional
retaliation, 49 U.S.C. § 20109(a), meaning that employers
must act with impermissible intent or animus to violate the
statute. What BNSF misses is that the only proof of
discriminatory intent that a plaintiff is required to show is that
his or her protected activity was a “contributing factor” in the
resulting adverse employment action. Showing that an
employer acted in retaliation for protected activity is the
required showing of intentional discrimination; there is no
requirement that FRSA plaintiffs separately prove
discriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,
in Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we
reviewed claims under the Energy Reorganization Act’s
whistleblower retaliation protections that employ the same
statutory framework as the FRSA. Id. at 480. We explained:
“Under this framework, the presence of an employer’s
subjective retaliatory animus is irrelevant. All a plaintiff
must show is that his ‘protected activity was a contributing
factor in the adverse [employment] action.’” Id. at 482
(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).
Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also
involved a retaliation claim arising in the context of a statute
with the same “contributing factor” framework. There, we
explained that to meet her burden at the prima facie stage a
plaintiff need not “conclusively demonstrate the employer’s
retaliatory motive.” Id. at 750 (emphasis added). Rather, the
employer’s retaliatory motive was established by proving that
                       FROST V. BNSF                        11

the protected conduct was a contributing factor to the
employer’s adverse action.

    More recently, in Rookaird, we quoted the Eighth
Circuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d
786 (8th Cir. 2014), and said that “‘the contributing factor
that an employee must prove is intentional retaliation
prompted by the employee engaging in protected activity.’”
Rookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at
791) (alteration omitted). BNSF cites this language from the
Kuduk decision to argue that the FRSA requires proof of
discriminatory animus, separate from and beyond the
statutorily required evidence that the plaintiff’s protected
conduct was a contributing factor in the adverse employment
action. But as Tamosaitis and Coppinger-Martin have
shown, we have already rejected that premise as inconsistent
with the FRSA’s articulation of each party’s required
evidentiary burden. In fact, in Kuduk, the Eighth Circuit
relied on our Coppinger-Martin decision and acknowledged
that plaintiff need not provide “conclusive[]” proof of the
employer’s animus to establish the plaintiff’s prima facie
case. See Kuduk, 768 F.3d at 791. Rookaird’s citation to
Kuduk does not imply, much less impose, an obligation to
prove retaliatory intent that is not included within the FRSA’s
clear and explicit statutory scheme. Instead, Rookaird simply
confirms that although intent or animus is part of an FRSA
plaintiff’s case, showing that plaintiff’s protected conduct
was a contributing factor is the required showing of intent or
“intentional retaliation[.]” Id. That is, by proving that an
employee’s protected activity contributed in some way to the
employer’s adverse conduct, the FRSA plaintiff has proven
that the employer acted with some level of retaliatory intent.
12                        FROST V. BNSF

    Consistent with the language of 49 U.S.C.
§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,
Coppinger-Martin, and Rookaird, we hold that although the
FRSA’s prohibition on “discriminat[ing] against an
employee” ultimately requires a showing of the employer’s
discriminatory or retaliatory intent, FRSA plaintiffs satisfy
that burden by proving that their protected activity was a
contributing factor to the adverse employment decision.5
There is no requirement, at either the prima facie stage or the
substantive stage, that a plaintiff make any additional
showing of discriminatory intent.

                                  IV.

                                  A.

    Frost argues that the district court’s honest belief jury
instruction misstated the applicable law. We agree.

     The district court instructed the jury that:

         BNSF cannot be held liable under the Federal
         Railroad Safety Act if you conclude that
         defendant terminated plaintiff’s employment
         based on its honestly held belief that plaintiff
         engaged in the conduct for which he was
         disciplined.


     5
      This holding is consistent with recent authority from the Third
Circuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,
158 (3d Cir. 2013), but we recognize that it may conflict with authority
from the Seventh and Eighth Circuits. However, we are bound by our
prior caselaw as well as the explicit statutory language of 49 U.S.C.
§§ 20109(d) and 42121(b)(2)(B).
                       FROST V. BNSF                         13

    That instruction is not consistent with the FRSA’s
statutory scheme. Frost needed to prove only that his
protected conduct (filing an injury report and an OSHA
complaint) was a contributing factor to his ultimate
termination. To rebut Frost’s case, BNSF had to prove that
the same discipline would have been imposed with or without
the injury report or the OSHA complaint. See 49 U.S.C.
§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This
necessarily means it was possible for Frost to show retaliation
even if BNSF had an honestly-held, justified belief that he
fouled the track. Frost was not required to show that his
injury report was the only reason or that no other factors
influenced BNSF’s decision to terminate him. Nor does the
instruction’s use of “based on” foreclose the possibility that
an impermissible factor or consideration contributed to the
decision to discipline Frost. As Rookaird explained,
“contributing factors” may be quite modest—they include
“any factor” which “tends to affect in any way the outcome
of the decision.” Id. at 461 (internal quotation marks
omitted). Under the AIR-21 standard, Frost would be entitled
to relief even if his filing of an injury report played only a
very small role in BNSF’s decision-making process.

    Instructing the jurors that they could find for BNSF by
looking only at whether BNSF honestly believed that Frost
broke a rule risked denying Frost a remedy to which he may
be entitled under the statute, particularly because the evidence
here appears to show relatively clearly that Frost fouled the
track. The instruction may have encouraged the jury to skirt
the actual issue and improperly focus on whether discipline
was justified for Frost’s safety violation instead of whether
his protected conduct “tend[ed] to affect in any way” the
decision to terminate him. Id. (internal quotation marks
omitted). The instruction may have short-circuited the jury’s
14                         FROST V. BNSF

deliberation by offering a path to finding for BNSF without
requiring that it assess all of the relevant statutory burdens.

   BNSF argues that honest belief instructions have been
approved in FRSA cases, citing Armstrong v. BNSF Railway
Co., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury
was instructed that:

         Defendant cannot be held liable under the
         FRSA if you conclude that Defendant
         terminated Plaintiff’s employment based on
         its honestly held belief that Plaintiff did not
         engage in protected activity under the FRSA
         in good faith.

Id. at 381 (emphasis added).

    Armstrong does not help BNSF because the primary
dispute in that case was about whether the plaintiff had
actually engaged in protected conduct in the first place, not
whether the protected conduct was a contributing factor to the
plaintiff’s discipline. Id. at 382. Because there was evidence
in Armstrong that the employer may have honestly believed
that the employee did not engage in protected activity,
Armstrong’s honest belief instruction was not improper. That
said, the only conclusion to be drawn from Armstrong is the
recognition that it would not be possible to show that an
employer retaliated in response to an employee engaging in
protected activity if the employer could demonstrate that it
honestly believed no protected activity had occurred.6


     6
      Even under the circumstances in Armstrong, we note that the
Seventh Circuit only tepidly approved the instruction as not the “clearest
possible statement of the applicable law[.]” 880 F.3d at 382.
                       FROST V. BNSF                        15

    Because there was no dispute that Frost engaged in
protected conduct, Armstrong is distinguishable and the
district court’s use of the honest belief instruction was
therefore legally erroneous.

                              B.

    We next determine whether the erroneous honest belief
instruction warrants a new trial.

    Frost provided evidence that other BNSF employees
fouled the track during the April 2012 incident, but that they
did not file injury reports and were not disciplined. The
jurors could construe this evidence of unpunished track-
foulers as proof of disparate treatment and retaliatory
conduct—i.e., that Frost’s injury report was a contributory
factor to his termination. However, the jurors also may have
found that evidence not very credible or they may have
instead believed the testimony of BNSF’s witnesses that
Frost’s injury report played no part in the decision to
discipline him. Though a properly instructed jury may have
reached a verdict for BNSF, we must presume prejudice
where an erroneous jury instruction is given. See Galdamez,
415 F.3d at 1025. The burden at this stage is thus on BNSF
to show it is more probable than not that the jury would have
reached the same verdict without the honest belief instruction.
Id. BNSF does not satisfy that burden.

    BNSF’s counsel acknowledged during its argument
before our court that we simply do not know exactly how the
jury evaluated the evidence in this case. The verdict form
was relatively sparse, asking only two questions: (1) whether
Frost had met his prima facie case of showing his protected
activity was a contributing factor; and (2) whether BNSF
16                     FROST V. BNSF

successfully rebutted Frost’s case by showing that it would
have imposed the same disciplinary action with or without the
protected conduct. The jury answered “no” to the first
question and did not answer the second.

    Because we do not know how the jurors applied the
honest belief instruction, we cannot find that the presumption
of prejudice is rebutted. BNSF presented strong evidence
(video from the train) that Frost fouled the track. The jurors
therefore may have felt it unnecessary to unravel any
potential factual tensions—e.g., the dispute between Frost’s
and BNSF’s witnesses about whether other laborers were
fouling the track at the same time Frost was—or they might
have discounted questions about whether Frost’s injury report
played any role (even if only a small one) in BNSF’s decision
to discipline Frost. We also do not know whether the jurors
concluded that Frost would have been terminated whether or
not he filed an injury report because they did not reach that
question on the verdict form. We are therefore bound to
presume the improper instruction was prejudicial. See
Galdamez, 415 F.3d at 1025.

    We also cannot conclude that the presence of other,
accurate instructions eliminated the possibility that prejudice
resulted from the honest belief instruction, although we
presume that juries listen to and follow instructions, and we
have previously found an erroneous jury instruction to be
harmless where the instructions as a whole were accurate.
See, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.
1973). There is relatively clear evidence that Frost
committed two safety violations, and the honest belief
instruction given here effectively allowed the jury to find for
BNSF on that basis alone. Because the erroneous instruction
provided a shortcut that the jury may well have taken, the jury
                       FROST V. BNSF                         17

may not have decided whether Frost’s injury report was a
factor that contributed to his termination or whether BNSF
would have terminated him even if he had not reported an
injury. Accordingly, the other jury instructions in this case do
not rebut the presumption of prejudice.

     BNSF suggested during argument before our court that
lay jury members would have understood the instruction’s use
of “based on” to mean “solely or exclusively based on,” so the
jury must have concluded that Frost’s injury report was not a
factor (contributory or otherwise) to his termination. In our
view, that is not an obvious or intuitive conclusion. It is just
as likely that a lay juror would conclude that if a certain
factor was the primary cause of a given consequence, the
consequence was “based on” that factor, regardless of
whatever other causative factors were shown at trial. More
importantly, the record in this case does not permit much of
an inference either way, and in the absence of more precise
language these (and perhaps other) interpretations of this
instruction were left available to the jury. BNSF’s
speculation about how the jury might have applied the
erroneous honest belief instruction therefore cannot rebut the
presumption of prejudice or effectively show it is more
probable than not that jurors would have reached the same
verdict with or without the honest belief instruction.
Galdamez, 415 F.3d at 1025.

                              V.

  The honest belief instruction was legally erroneous and
BNSF has failed to rebut the presumption that the improper
18                   FROST V. BNSF

instruction prejudiced Frost. Accordingly, we reverse the
district court’s determination and remand for a new trial.

     REVERSED AND REMANDED.
