                                                                                FILED
                            NOT FOR PUBLICATION
                                                                                MAR 02 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL ELLIOTT,                                  Nos. 15-35785
                                                       15-35899
               Plaintiff-Appellee,
                                                  D.C. No. 3:14-cv-05054-RBL
          v.

BNSF RAILWAY COMPANY, a                           MEMORANDUM*
Delaware corporation,

               Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                       Argued and Submitted February 7, 2018
                                Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      BNSF Railway Company appeals the judgment following a jury verdict in

favor of Michael Elliott, who alleged retaliation in violation of the Federal

Railroad Safety Act (FRSA), 49 U.S.C. § 20109. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. BNSF’s contention that the district court applied the wrong legal standard

to its same-decision affirmative defense is without merit. See 49 U.S.C.

§§ 20109(d)(2)(A), 42121(b)(2)(B)(iv). The record does not support BNSF’s

contention that the district court required it to prove Elliott actually engaged in

misconduct. On the contrary, the record confirms the district court, consistent with

the jury instructions, required BNSF to prove only that it sincerely believed the

misconduct occurred.

      2. Substantial evidence supports the jury’s finding that Elliott’s safety

complaints were a “contributing factor” in the investigative hearings and Elliott’s

termination. See 49 U.S.C. § 42121(b)(2)(B)(ii); Wallace v. City of San Diego,

479 F.3d 616, 624 (9th Cir. 2007) (“A jury’s verdict must be upheld if it is

supported by substantial evidence.”). A reasonable jury could have inferred from

the evidence, including email exchanges among BNSF managers, that Elliott’s

safety complaint prompted the Federal Railroad Administration inspections and

resulting violation finding and fine. A reasonable jury could have also inferred a

retaliatory motive based on evidence of BNSF’s animus toward Elliott, as well as

from the temporal proximity between Elliott’s safety complaint and subsequent

safety violation assessment, and the alleged retaliatory actions.




                                           2
      3. Substantial evidence likewise supports the jury’s finding that BNSF did

not sincerely and honestly believe Elliott actually engaged in misconduct

warranting dismissal. A reasonable jury could have concluded BNSF

manufactured the physical altercation with supervisor Dennis Kautzmann to create

a pretext for the retaliatory actions. See Josephs v. Pac. Bell, 443 F.3d 1050,

1062–63 (9th Cir. 2006). A reasonable jury also could have inferred that BNSF

knew about Elliott’s felony conviction since 2007, and raised the conviction in

2011 solely as a pretext for retaliating against him.

      4. The district court did not abuse its discretion when it sustained Elliott’s

objection to the admission of investigative hearing transcripts as cumulative. See

Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1202 (9th

Cir. 2013) (“A district court’s evidentiary rulings should not be reversed absent

clear abuse of discretion and some prejudice.” (quoting S.E.C. v. Jasper, 678 F.3d

1116, 1122 (9th Cir. 2012)). The BNSF managers who made the decision to

terminate Elliott testified at trial about the evidence they relied on from the

investigative hearings. The district court also did not abuse its discretion when it

refused to admit documentary evidence regarding other BNSF employees who

were dismissed for violating company policies; BNSF suffered no prejudice

because the district court permitted BNSF to elicit limited, general testimony on


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this topic. Finally, the district court did not abuse its discretion when it rejected

BNSF’s proposed business judgment rule instruction. The business judgment rule

is not a legal defense to an FRSA claim, and BNSF cites no authority for the

proposition that trial courts must give such an instruction in FRSA retaliation

cases.

         5. We reject BNSF’s contention that Elliott offered no evidence of mental

anguish. Elliott’s testimony regarding his mental anguish adequately supports the

jury’s damages award. See Johnson v. Hale, 13 F.3d 1351, 1352 (9th Cir. 1994).

         6. We need not decide whether a jury may award front pay in FRSA cases.

Because BNSF did not object to the instruction regarding front pay, we review for

plain error. See Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015). Here, any

error was not obvious. See 49 U.S.C. § 20109(e)(2) (categorizing reinstatement as

“damages”).

         7. The district court did not abuse its discretion when it ruled on Elliott’s

untimely filing of his attorney’s fees motion. Although it only discussed one of the

four Pioneer/Briones factors in determining excusable neglect, the record supports




                                             4
findings consistent with the district court’s decision. See Bateman v. U.S. Postal

Serv., 231 F.3d 1220, 1225 n.3 (9th Cir. 2000); Ahanchian v. Xenon Pictures, Inc.,

624 F.3d 1253, 1262 (9th Cir. 2010).

      AFFIRMED.




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