                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2372
                        ___________________________

                                 Edward Blackorby

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                             BNSF Railway Company

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 17, 2019
                              Filed: August 23, 2019
                                  ____________

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Plaintiff Edward Blackorby appeals following an adverse jury verdict on his
retaliation claims under the Federal Railroad Safety Act. 49 U.S.C. § 20109
(“FRSA”). He challenges the jury instructions in several respects. We agree with his
argument that the instructions misstated the “honestly held belief” defense in the
context of the FRSA’s contributing-factor standard and misallocated and misstated
the burden of proof. Pursuant to our precedent applying the FRSA (including the
prior appeal in this case), the plaintiff bears the burden of proving that intentional
retaliation in response to protected conduct served as a contributing factor in an
adverse employment action. By express statutory command, the defendant then bears
the burden of proving an affirmative defense—that the defendant would have taken
the same action in the absence of protected conduct—by clear and convincing
evidence. 49 U.S.C. § 42121(b)(2)(B)(iv). The “honestly held belief” instruction, as
given in this case, stated BNSF was excused from liability if it honestly believed
Blackorby had engaged in employee wrongdoing. This instruction, however, did not
reference the contributing-factor standard. Moreover, the instructions as a whole
expressly incorporated this defense into the plaintiff’s case, failing to allocate the
burden of proof to BNSF and failing to identify that burden of proof as clear and
convincing evidence. Because this composite error was prejudicial, we reverse.

                                   I. Background

       Blackorby suffered an eye injury while at work. The day of his injury was
windy and dusty. He reported to a union foreman that he had gotten something in his
eye. The foreman recommended saline eye drops, which provided partial relief. In
fact, a small metal shard had entered his eye. The existence and severity of the eye
injury was not immediately apparent, and Blackorby did not immediately report the
incident to his employer, BNSF, through any official channels. Several days later his
eye swelled substantially, and he went to an eye doctor. The eye doctor discovered
and removed the shard.

      That same day, Blackorby reported the matter to a BNSF manager, Douglas
Turney, and told the manager he had a follow-up appointment the next day. Turney
passed that information along to another manager, James Sadler, who asked to
accompany Blackorby to his appointment. Blackorby checked with his union
representative who said Sadler could accompany Blackorby but not enter the
examining room or ask to see Blackorby’s records. Blackorby consented to allow

                                         -2-
Sadler to accompany him but felt uncomfortable with the situation. At the follow-up
appointment, the doctor told Blackorby his eye would be okay and prescribed an
antibiotic.

       In the doctor’s lobby, Sadler asked Blackorby if he wanted to formally report
the injury. According to Blackorby, Sadler was “adamant” that Blackorby not report
the injury and suggested Blackorby could say the injury happened at home.
Blackorby was upset with Sadler’s suggestions, called Turney, and stated he was
unwilling to lie and intended to report the injury. The next day at work, he formally
reported the injury.

       Two days later, Blackorby received notice that he was under investigation for
violating a company rule that mandated work-related injuries be reported
“immediately” to the “proper manager.” BNSF Maintenance of Way Operating Rule
1.2.5. BNSF provided a hearing, determined Blackorby had violated the rule, and
imposed a 30-day record suspension and one-year probationary period.1 Blackorby
filed a complaint with OSHA, whose Regional Administrator determined BNSF had
violated Blackorby’s rights. While an appeal from that administrative ruling was
pending, Blackorby filed the present action.

       At a first trial, the jury returned a verdict for Blackorby, awarding him
compensatory damages. On appeal from that judgment, we reversed. See Blackorby
v. BNSF Ry. Co., 849 F.3d 716, 723 (8th Cir. 2017) (“Blackorby I”). We held the
jury instructions at the first trial were flawed in that they stated expressly that the
plaintiff need not show the defendant acted with a retaliatory animus. Id. at 722.
Relying upon Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), we held that a



      1
        During a probationary period BNSF may suspend an employee without pay
if the employee commits another rule violation.

                                         -3-
FRSA retaliation claim requires the plaintiff to prove that the employer acted with
intentional retaliatory animus. Blackorby I, 849 F.3d at 722.

       On remand, the parties conducted a second jury trial as to liability only.2 The
parties vigorously contested the jury instructions on remand. Arguments on appeal
center on four of the instructions, Instructions 16–19, which the district court used
over Blackorby’s objections. We quote and discuss those four instructions below.
The jury returned a verdict for BNSF, holding Blackorby did not prove his prima
facie case. Blackorby appeals.

                                     II. Discussion

      We review a district court’s jury instructions for an abuse of discretion.
      A district court possesses broad discretion in instructing the jury, and
      jury instructions do not need to be technically perfect or even a model
      of clarity. But the jury instructions, taken as a whole, must fairly and
      adequately represent the evidence and applicable law in light of the
      issues presented to the jury in a particular case. Even if we find that a
      district court erroneously instructed the jury, we will reverse only where
      the error affects the substantial rights of the parties.

Blackorby I, 849 F.3d at 720 (citations, quotation marks, and alterations omitted).

       Blackorby’s first challenge relates to the primary instructions in this case
setting forth the elements of Blackorby’s prima facie case, Instruction 16, and
BNSF’s affirmative defense, Instruction 18.3 Blackorby argues these instructions,


      2
       BNSF had not appealed the amount of the damages award, and the parties
agreed the amount of the damages award would not be retried.
      3
          Instruction 16 provides:

      Your verdict must be for Plaintiff Ed Blackorby and against Defendant

                                          -4-
taken together, fail to accurately express the law as set forth in our prior opinion. He
also renews his challenge to the holding of our prior opinion as an apparent means of
preserving his arguments for en banc review.

      We conclude that Instructions 16 and 18, read together, adequately conveyed
the applicable law to the jury. Instruction 16, as mandated by our prior opinion,


      BNSF Railway on Plaintiff’s claim of retaliation if the following
      element has been proved by the preponderance of the evidence:

             That Defendant BNSF Railway intentionally retaliated
             against Plaintiff by placing him on a thirty (30) day record
             suspension and probation for one (1) year due, in whole or
             in part, to Plaintiff Ed Blackorby’s having notified
             Defendant of Plaintiff’s work related injury.

      It is not enough for Plaintiff Ed Blackorby to establish merely that two
      events occurred close in time to one another. If the above element has
      not been proved or if Defendant BNSF Railway is entitled to a verdict
      under Instruction No. 18, then your verdict must be for Defendant BNSF
      Railway, and you need not proceed further in considering this claim.
      You may find that Defendant BNSF Railway’s act of placing him on a
      thirty (30) day record suspension and probation for one (1) year was
      due, in whole or in part, to Plaintiff Ed Blackorby’s notifying Defendant
      of Plaintiff’s work-related personal injury if it has been proved that
      Defendant’s stated reason for placing him on a thirty (30) day record
      suspension and probation for one (1) year is a pretext to hide retaliation.

Instruction 18 provides:

      Your verdict must be for Defendant BNSF Railway if it has been proved
      by clear and convincing evidence that Defendant would have taken the
      same action of placing him on a thirty (30) day record suspension and
      probation for one (1) year even if Plaintiff Ed Blackorby had not
      notified Defendant of Plaintiff’s work-related personal injury.


                                          -5-
incorporated a showing of intentional retaliatory animus as an element of Blackorby’s
prima facie case. See Blackorby I, 849 F.3d at 722. It also conveyed expressly the
statutory standard that the protected report contribute “in whole or in part” to the
adverse action. See 49 U.S.C. § 20109(a). Instruction 18, in turn identified the
statutory “clear and convincing evidence” standard for BNSF’s burden of proving
that it would have taken the same action regardless of Blackorby’s protected activity.
See 49 U.S.C. § 42121(b) (setting forth the defense’s burden of proof incorporated
by reference through 49 U.S.C. § 20109 (d)(2)(A)(i)). These two instructions, taken
together, captured the requirements discussed at length in Kuduk and Blackorby I.
We therefore reject Blackorby’s first challenge.

      Blackorby’s second challenge relates to Instructions 17 and 19.4 Looking at
Instruction 17, the first sentence is an unobjectionable statement of the business
judgment rule, presented generically and without reference to any party’s burden of
proof. The first sentence states simply that the jury “not concern” itself with the


      4
          Instruction 17 provides:

      In deciding Plaintiff’s claim, you should not concern yourself with
      whether Defendant BNSF Railway’s actions were wise, reasonable, or
      fair. BNSF Railway cannot be held liable under the FRSA if you
      conclude that BNSF Railway disciplined Plaintiff based on its honestly
      held belief that Plaintiff engaged in misconduct or committed a rules
      violation.

Instruction 19 provides:

      Any issue as to the amount of monetary damages that may be awarded
      will not be decided by you. At this point, you are only to decide
      whether Plaintiff Ed Blackorby has proven the element of his claim (see
      Instruction Nos. 16 through 17) and whether Defendant BNSF Railway
      has proven it would have taken the same unfavorable personnel action
      regardless of any protected activity (see Instruction No. 18).

                                         -6-
wisdom, reasonableness, or fairness of the employer’s actions. To the extent
Blackorby directs his challenge at this articulation of the business judgment rule, we
reject his argument.

        The second sentence of Instruction 17, however, is an incorrect statement of
the law in the context of the contributing-factor standard. The second sentence states,
“BNSF Railway cannot be held liable under the FRSA if you conclude that BNSF
Railway disciplined Plaintiff based on its honestly held belief that Plaintiff engaged
in misconduct or committed a rules violation.” As made clear in the first panel
opinion, a retaliatory motive gives rise to FRSA liability if retaliation was a
“contributing factor” in the discipline decision. Blackorby I, 849 F.3d at 721–22.
Contrary to the plain language of Instruction 17’s second sentence, an employer can,
in fact, be held liable under the FRSA if it disciplines an employee based on its
honestly held belief that the employee engaged in misconduct or committed a rules
violation. Liability will still exist notwithstanding such a belief if the employer’s
retaliatory motive also played a contributing role in the decision and if the employer
fails to carry the burden of proving by clear and convincing evidence that it would
have taken the same action in the absence of the protected report. As Blackorby
succinctly notes in his opening brief, “A finding that an employer maintained an
honest belief that an employee engaged in misconduct or violated a rule is not
mutually exclusive with a finding of retaliatory intent.” In fact, two causes being
non-mutually exclusive is the very essence and definition of a “contributing” factor.

       Moreover, this instructional error was compounded by the express
misallocation and misstatement of the burden of proof. Instruction 17 itself contained
no reference to a burden of proof or to the clear-and-convincing-evidence standard.
Instruction 19, however, expressly and erroneously described the burden of proof for
Instructions 16 and 17 as being part of the plaintiff’s case. See supra n.4 (“At this
point, you are only to decide whether Plaintiff Ed Blackorby has proven the element
of his claim (see Instruction Nos. 16 through 17) . . . .”). Therefore, the only

                                         -7-
interpretation consistent with Instructions 17 and 19 shows that the jury was told to
consider the “honestly held belief” instruction as part of Blackorby’s own prima facie
case and not as a part of BNSF’s heightened burden under the clear-and-convincing-
evidence standard.5

       BNSF nevertheless argues Instructions 17 and 19 were permissible, relying on
a Seventh Circuit case which used an instruction nearly identical in material respects
to Instruction 17. See Armstrong v. BNSF Ry. Co., 880 F.3d 377 (7th Cir. 2018).
BNSF also relies on our general rule that trial courts have “wide discretion on choice
of language” so long as the instructions “as a whole accurately and adequately state
the relevant law.” United States v. Kabat, 797 F.2d 580, 588 (8th Cir. 1986). We
reject BNSF’s argument for several reasons.

       First, nothing in Armstrong suggests that the instructions in that case, as a
whole, erroneously placed the “honestly held belief” defense into the plaintiff’s case
rather than properly placing it within the defendant’s affirmative defense. In other
words, the compounding effect of the error identified in the current instructions was
not present in Armstrong. This compounding effect precludes us from holding the
current instructions “as a whole” accurately conveyed the relevant law. Kabat, 797
F.2d at 588.

       Second, we find Armstrong distinguishable on a separate basis. In Armstrong,
the plaintiff-employee filed a report alleging a supervisor had attacked and injured
him by slamming a door on his leg as he left the supervisor’s office. 880 F.3d at 379.
The employee later sued under the FRSA alleging retaliation based on the filing of

      5
        We do not mean to suggest there is anything inherently impermissible about
using an “honestly held belief” instruction in the context of an FRSA retaliation
claim. Any such instruction, however, must be articulated in a manner that preserves
the clear-and-convincing-evidence standard, the contributing factor standard, and the
statutory burden-shifting framework.

                                         -8-
his report. Id. at 380. A video of the scene, however, appeared to show the
supervisor located ten to twelve feet from the door at the time the plaintiff-employee
left the supervisor’s office. Id. at 379. The fighting issue in Armstrong, therefore,
involved a very specific type of perceived employee misconduct—the filing of a false
report. Given that specific context, if the employer honestly believed the plaintiff-
employee had knowingly made a false report, it would seem nearly impossible for that
same report to support a claim of unlawful retaliation. The FRSA, after all, prohibits
retaliation against employees who make lawful, good faith complaints. See 49 U.S.C.
§ 20109(a) (prohibiting discrimination “due, in whole or in part, to the employee’s
lawful, good faith act”). And, the act of making a false report simply is not a lawful,
good faith complaint. The issue in Armstrong, therefore, was not so much a question
of mixed motives or contributing factors. Rather, the issue was the existence or non-
existence of a protected act. See Armstrong, 880 F.3d at 382 (“If BNSF fired
Armstrong because it honestly believed that he was lying about his complaint, then
it necessarily follows that it did not retaliate against Armstrong for filing a good faith
complaint.”).

       The fighting issue in the present case, in contrast, did not involve allegations
of a false report. Blackorby alleged BNSF retaliated against him for making a
truthful and good-faith, albeit untimely, report and also for refusing his supervisor’s
coercive attempts to prevent him from making any report at all. Unlike in Armstrong,
there is no inconsistency between BNSF being motivated in part by an impermissible
retaliatory motive and in part by an honestly held belief that Blackorby violated a
rule. As a result, we decline BNSF’s invitation to adopt Armstrong as controlling in
our circuit or as establishing a general rule that the language of Instruction 17 may
be deemed appropriate in all cases.

      BNSF also argues any error in the present instructions was not prejudicial
because the jury concluded Blackorby did not prove his prima facie case. This
argument, however, looks at Instruction 17 in isolation and ignores the fact that the

                                           -9-
instructions, as a whole, wrongly identified the “honestly held belief” issue as a part
of Blackorby’s prima facie case. The jury’s determination that Blackorby did not
establish his prima facie case, therefore, supports, rather than disproves, a finding of
prejudice.

       It is true that, in limited circumstances, even a misallocated burden of proof
may be deemed non-prejudicial. See, e.g., United States v. Ashburn, 865 F.3d 997,
1000 (8th Cir. 2017) (“[W]e have no doubt the district court would have reached the
same decision with a proper application of the burden of proof.”). Such
circumstances typically involve overwhelming evidence and, as in Ashburn, judicial
determinations of facts such as those that occur at sentencing. See id. n.3 (“Nor is
there any indication the district court thought Ashburn’s testimony, weighed against
the other evidence, made the question too close to call, such that the applicability of
the enhancement came down to which side bore the burden of proof.”). The current
case does not present such circumstances.

       In any event, our court has been exacting when addressing the question of
prejudice in the context of jury instructions that misallocate the burden of proof. In
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., for example, we
stated:

      Furthermore, we do not think the error was harmless, because whether
      [the defendant] is legally liable for the damage . . . seems to be a very
      close and difficult question in the circumstances of this case, and in
      close factual situations such as the present one, the standard of care and
      burden of proof have heightened importance and can easily affect the
      jury’s ultimate verdict. The jury may well return the same verdict . . .
      after a new trial upon proper instructions, but we do not think the
      instructional error was harmless, but instead was harmful, prejudicial,
      and reversible.



                                         -10-
254 F.3d 706, 714 (8th Cir. 2001). Given this exacting review and given the subtle
distinctions at issue when assessing whether retaliatory animus played a contributing
role in an employer’s actions, we conclude the instructional error was prejudicial.

       Finally, BNSF argues that even if Instruction 17 contained error, Blackorby did
not object with sufficient specificity to preserve his present, detailed allegation of
error. As such, according to BNSF, plain-error review should apply and any
instructional error does not amount to plain error. We conclude normal abuse-of-
discretion review rather than plain-error review applies. The transcript reveals that
Blackorby’s objection was sufficiently specific to preserve arguments concerning
both the burden of proof and the exact wording of the instructions. In his objection,
Blackorby stated:

      Now, the second paragraph of that I think is the complete misstatement
      of the law, and I think it’s error because the way the statute is set up
      under the FRSA is plaintiff has to prove his case by a preponderance of
      the evidence. If he does so, the burden shifts to the defense, and the
      defense has one affirmative defense. And this second paragraph here
      essentially gives them the second affirmative defense and additionally
      imposes another burden on the plaintiff.

      So essentially we have to somehow prove an additional element that
      BNSF did not honestly hold the belief that plaintiff engaged in protected
      activity. That’s not in the statute anywhere. That’s never been applied
      in the case that claims that we have to prove that.

      Again, it gives the — BNSF a second affirmative defense, which, again,
      is not in the statute; and then, third, it allows the defense to basically
      say, well, we didn’t believe it so there’s no liability. The statute is very
      clear that a protected act is a protected act if the plaintiff has a good-
      faith belief. It does not say that the defense—I’m sorry—the defendant
      can escape liability with its good-faith belief.



                                         -11-
This objection suffices to preserve arguments concerning both the precise manner of
wording and the failure to properly allocate the burden of proof. See Fed. R. Civ. P.
51(c) (“A party . . . must . . . stat[e] distinctly the matter objected to and the grounds
for the objection.”).

                                    III. Conclusion

      We reverse the judgment of the district court and remand for further
proceedings consistent with this opinion.
                      ______________________________




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