United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter is before the Court on the parties' motions
regarding a pretrial settlement conference. Dkt. ## 324, 327.
For the reasons below, the Court GRANTS the
Curtis Rookaird brought this action pursuant to 49 U.S.C.
§ 20109(d)(3) alleging Defendant BNSF Railway Company
(“BNSF”) violated the anti-retaliation provision
of the Federal Railroad Safety Act (“FRSA”).
Rookaird claims BNSF fired him, in part, for refusing to stop
performing an air-brake test. Dkt. # 310 at 7. BNSF disputes
this and claims it did not fire Rookaird for that reason.
Id. BNSF also asserts the affirmative defense that
it would have fired Rookaird even if he had not performed the
airbrake test. Id.
retaliation claim requires a plaintiff to prove by the
preponderance of the evidence that (1) he engaged in a
protected activity; (2) the employer knew he engaged in the
allegedly protected activity; (3) he suffered an unfavorable
personnel action; and (4) the protected activity was a
contributing factor in the unfavorable personnel action. 29
C.F.R. § 1982.104(e)(2). In this case, the district
court found a triable issue as to whether Rookaird engaged in
a protected activity, but otherwise granted him summary
judgment on the remaining elements of his FRSA retaliation
claim. Dkt. # 310 at 8. At trial, the jury was asked to
consider the protected activity element, BNSF's
affirmative defense, and damages. Id. The jury
ultimately found that Rookaird's refusal to stop the
break-test was FRSA-protected activity. Id. The
district court awarded $1.2 million in damages and entered
final judgment. Id.
parties timely appealed several of the underlying orders.
Dkt. ## 290, 291, 303, 307. The Ninth Circuit affirmed the
district court's denial of BNSF's motion for judgment
as a matter of law on the protected-activity element. Dkt. #
310. But the Ninth Circuit found that the district court
improperly conflated the prima facie showing of
Rookaird's FRSA retaliation claim with his substantive
case, and held that Rookaird was not entitled to summary
judgment on the contributing-factor element of his
substantive case. Id. at 23. In reversing, the Ninth
Circuit added that it “express[es] no view on whether
the improper grant of summary judgment to Rookaird on his
substantive case justifies a new trial on other issues, such
as BNSF's affirmative defense or damages. We leave it to
the district court on remand to decide whether a new trial on
other issues is warranted in light of our decision.”
Dkt. # 310 at 24 n. 8.
February 6, 2019, the parties filed a joint statement
regarding their positions on the proper scope of remand and
potential discovery. Dkt. # 321. On April 25, 2019, Rookaird
moved for an order setting a settlement conference and on May
30, 2019, the parties jointly moved for an order setting a
settlement conference. Dkt. ## 324, 327; see Fed. R.
Civ. P. 16(a)(5) (noting that one purpose of a pretrial
conference may be to facilitate settlement of the case); LCR
the parties stipulate to a pretrial settlement conference,
they take opposing views on the proper scope of remand.
Rookaird asks the Court to construe the Ninth Circuit's
remand narrowly and limit a new trial to the contributing
factor element only. Dkt. # 321 at 4. BNSF argues that a new
trial on all liability and damages issues related to the FRSA
retaliation claim is appropriate. Id. at 10. BNSF
contends specifically that the district court's grant of
summary judgment on the contributing-factor element, and its
instruction to the jury that the element was not in dispute,
“fundamentally altered the focus of the trial and the
jury's consideration of the issues and evidence.”
support, BNSF points to the Ninth Circuit's finding that
BNSF “presented evidence that, if credited, could lead
a reasonably jury to find that Rookaird's refusal to stop
the air-brake test did not contribute to BNSF's decision
to terminate him.” Id. at 10 (citing
Rookaird v. BNSF Railway Co., 908 F.3d 451, 462-63
(9th Cir. 2018)). The Ninth Circuit noted, among other
potential reasons for Rookaird's termination, his failure
to provide a signed time slip, his refusal to leave BNSF
property when instructed, and his inaccurate reporting of his
off-duty time. Id.
case is reversed on a particular point and remanded for
further proceedings, the trial court generally has broad
discretion to determine the proceedings which are appropriate
in light of the appellate court's decision. See
d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 897
(9th Cir. 1977) (whether to limit issues in new trial is
within trial court's discretion). A partial new trial is
proper when the issues to be retried are distinct and
separable from the others such that a trial of those issues
may be had without injustice. Gasoline Products Co. v.
Champlin Refinishing Co., 283 U.S. 494, 500 (1931);
Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128,
1133 (9th Cir. 1995). Here, the Ninth Circuit mandate was
only that a jury should determine the contributing-factor
element of Rookaird's substantive case. Dkt. # 310 at 24.
However, the Court finds that BNSF's affirmative
defensive-that BNSF would've fired Rookaird even if he
had not performed the air-brake test-is not so distinct and
separate from the contributing-factor element. Both issues
largely rely on consideration of the same evidence.
Rookaird, 908 F.3d at 462-63. Given the
interrelatedness between the contribution-factor element and
the BNSF's affirmative defense, the Court finds it proper
to submit both issues to the jury.
causation is at issue, i.e., whether Rookaird's
protected activity was a factor in his termination, the Court
will also resubmit the question of damages to the jury. The
Court has no preconceived notion as to whether the damages
awarded during the first trial could be supported on retrial
where the contributing-factor element is at issue.
Gasoline Products Co., 283 U.S. at 500. And after
consideration of the Rule 16 factors, the Court will reopen
discovery on issues related to damages since the May 2016
trial. See City of Pomona v. SQM North Am. Corp.,
866 F.3d 1060 (9th Cir. 2017) (outlining the six factors for
courts to consider in amending a Rule 16 scheduling order).
The trial, set for July 2020, is not imminent and discovery
with respect to damages would lead to relevant evidence.
other issues previously decided are collateral and will not
be considered on remand, including the protected activity