Petition for Writ of Certiorari — Paul W. Parker, as Personal Representative of the Estate of Curtis John Rookaird, Petitioner v. BNSF Railway Company, a Delaware Corporation

Supreme Court briefOct 9, 2025

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TABLE OF APPENDICES

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APPENDIX A – EN BANC NINTH CIRCUIT

OPINION (137 F.4TH 957), FILED

MARCH 15, 2025 .............................................. 1a

APPENDIX B – DISTRICT COURT FINDINGS

OF FACT AND CONCLUSIONS OF LAW,

FILED MARCH 28, 2022 ................................ 27a

APPENDIX C – RELEVANT STATUTORY

PROVISIONS................................................... 46a

APPENDIX A – EN BANC NINTH CIRCUIT

OPINION, FILED MARCH 15, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 22-35695

PAUL W. PARKER, as Personal Representative of

the Estate of Curtis John Rookaird,

Plaintiff-Appellant,

BNSF RAILWAY COMPANY, a Delaware

corporation,

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted En Banc March 19, 2025

San Fransico, California

Filed May 15, 2025

Before: MURGUIA, GRABER, WARDLAW, OWENS,

FORREST, SUNG, THOMAS, MENDOZA Jr.,

DESAI, JOHNSTONE, and ALBA, Circuit Judges.

OPINION BY JUDGE GRABER

SUMMARY ∗

Federal Railroad Safety Act

The en banc court affirmed the district court’s

judgment after a bench trial in favor of BNSF Railway

Co., the defendant in a retaliation action under the

Federal Railroad Safety Act.

Conductor Curtis Rookaird alleged that BNSF

fired him in retaliation for engaging in protected

activity by testing the air brakes on railcars. After a

bench trial on remand from this court, the district

court concluded that Rookaird met his burden of

proving, by a preponderance of the evidence, that the

air-brake test was a contributing factor to the firing.

The district court further found, however, that BNSF

met its burden of proving that it would have fired

Rookaird anyway.

The en banc court held that the district court

applied the correct burden of proof from the Wendell

H. Ford Aviation Investment and Reform Act for the

21st Century, or “AIR21,” and permissibly

determined that the air-brake test played a small role

in BNSF’s firing decision. Because even a small

contribution suffices under the applicable lenient

standard, Rookaird properly prevailed at this step of

the analysis.

The en banc court held that under the AIR21

standard, if the plaintiff meets their initial burden,

then the defendant faces a steep burden in proving,

This summary constitutes no part of the opinion of the court. It

has been prepared by the court staff for the convenience of the

reader

∗

by clear and convincing evidence, the affirmative

defense that it would have taken the same

unfavorable personnel action in the absence of the

protected behavior. The en banc court concluded that

the district court correctly applied this legal standard.

Reviewing for clear error, the en banc court affirmed

the district court’s finding that BNSF met the AIR21

standard’s high bar and established the affirmative

defense.

COUNSEL

William G. Jungbauer (argued) and John D.

Magnuson, Yaeger & Jungbauer Barristers PLC,

Saint Paul, Minnesota; Cyle A. Cramer, Nichols

Kaster PLLP, Minneapolis, Minnesota; for PlaintiffAppellant.

David M. Morrell (argued), Jacqueline M.

Holmes, and Michael Heckman, Jones Day,

Washington, D.C.; Tim D. Wackerbarth, Callie A.

Castillo, and Andrew G. Yates, Ballard Spahr LLP,

Seattle, Washington; Shelby B. Smith, Jones Day,

Pittsburgh, Pennsylvania; for Defendant-Appellee.

Robert B. Mitchell, K&L Gates LLP, Seattle,

Washington; Kathryn D. Kirmayer and Charlie

Kazemzadeh, Association of American Railroads,

Washington, D.C.; for Amicus Curiae Association of

American Railroads.

OPINION

GRABER, Circuit Judge:

Curtis Rookaird worked as a conductor for

Defendant BNSF Railway Company until early 2010,

when BNSF fired him for his conduct on a single

workday. BNSF concluded that Rookaird worked

inefficiently; failed to sign his timesheet; dishonestly

added to his timesheet time that he did not work; and

insubordinately refused two separate instructions by

a supervisor to leave the premises, instead staying on

site and causing a heated argument with a coworker.

Rookaird brought this action, alleging that BNSF

retaliated against him in violation of the Federal

Railroad Safety Act (“FRSA”). Rookaird argued that,

during his shift, he engaged in activity protected by

the FRSA by testing the air brakes on railcars and

that BNSF fired him on account of those tests. The

district court determined, after a bench trial, that

BNSF had proved by clear and convincing evidence

that it would have fired Rookaird anyway, even if he

had not tested the air brakes. Because BNSF proved

its affirmative defense, the court entered judgment

for BNSF. We hold that the district court’s decision

was free of legal error and that the court did not

clearly err in its factual findings. Accordingly, we

affirm.

FACTUAL AND PROCEDURAL HISTORY

The district court made detailed factual

findings following the bench trial. Parker v. BNSF Ry.

Co., No. 2:14-cv-00176-RAJ, 2022 WL 897604 (W.D.

Wash. Mar. 28, 2022). As we explain in this opinion,

the record fully supports the district court’s findings,

and the court did not clearly err. We thus recount the

facts as determined by the district court. See Yu v.

Idaho State Univ., 15 F.4th 1236, 1241 (9th Cir. 2021)

(noting that we must accept the district court’s

factual findings following a bench trial unless they

are clearly erroneous).

On February 23, 2010, BNSF assigned

Rookaird to work with engineer Peter Belanger and

brakeman Matthew Webb. Parker, 2022 WL 897604,

at *1. The shift began at 2:30 p.m. at the Swift depot

in Blaine, Washington. Id. The primary task for the

crew was to travel to the Cherry Point depot to

service BNSF’s customers. Id. But the crew was

instructed first to travel to the Custer depot and to

move 42 railcars onto storage tracks at that location.

Id.

The crew traveled to Custer as instructed

and began moving the cars onto storage tracks. Id.

at *2. During that process, the crew performed an

air-brake test, which took 20 to 40 minutes. Id.

“During the air test, BNSF trainmaster Dan Fortt

called the crewmembers on the radio and asked

them why they were conducting the test. He said,

‘I’m not from around here, and I don’t know how

you guys do anything. But from where I’m from,

we don’t have to air test the cars.’” Id. (citation

omitted). “Despite his remarks, Mr. Fortt did not

instruct the crew to stop the air test.” Id.

At approximately 7:30 p.m., which was five

hours into the shift, the crew had not yet moved all

the cars onto the storage tracks.

Id.

When

contacted by a supervisor, Rookaird stated that it

would take one or two more hours to finish moving

the cars. Id. The supervisor instructed the crew to

tie the cars down to the main line and report back to

the Swift depot. Id.

When the crew arrived at Swift, BNSF

assistant superintendent Stuart Gordon instructed

the crew to “tie up,” or sign out for the day, and to go

home. Id. Belanger and Webb signed out and left.

Id. at *4. Rookaird failed to sign his tie-up slip, and

he inaccurately recorded the time as 8:30 p.m.,

instead of 8:02 p.m. Id. at *2. Additionally, “instead

of going home as instructed, Mr. Rookaird went to the

lunch room and argued with another employee.” Id.

Gordon intervened and again told Rookaird to go

home. Id. Rookaird “did not leave and instead

continued to argue.” Id. For a third time, Gordon

instructed Rookaird to go home, and Rookaird

complied. Id. at *3.

Following an investigation, BNSF fired

Rookaird on March 19, 2010, “for four reasons: he

failed to work efficiently, he was dishonest when

reporting his off-duty time, he failed to provide a

signed FRSA tie-up slip, and he failed to comply with

instructions when he was instructed to leave the

property.

All four reasons stemmed from Mr.

Rookaird’s actions on February 23, 2010.”

Id.

(citation omitted).

BNSF fired Mr. Rookaird in

accordance with

its

Policy

for

Employee

Performance

and

Accountability (“PEPA policy”). The

PEPA policy outlined several types of

rule violations and their consequences.

The most severe type of violation was

a dismissible violation. A single

dismissible violation could result in

the ultimate sanction of dismissal. A

list of single aggravated offenses that

were

considered

dismissible was

contained in Appendix C of the PEPA

policy. Under Appendix C of the

PEPA policy, a single dismissible

violation include gross dishonesty and

insubordination.

BNSF terminated Mr. Rookaird

for his gross dishonesty. Mr. Rookaird

recorded his tie-up time as 8:30 P.M.

when he, in fact, completed his tie-up

slip 28 minutes earlier at 8:02 P.M. He

also did not sign his tie-up slip. BNSF

believed that this was improper and

dishonest. It believed that this

dishonesty was significant because it

believed that maintaining proper tie-up

slips was essential to complying with

federal regulations. BNSF believed that

Mr. Rookaird’s failure to sign his FRSA

tie-up timeslip and his inaccurate

reporting of his tie-up time constituted

gross dishonesty under Appendix C of

the PEPA policy.

BNSF also terminated Mr.

Rookaird for his insubordination. Mr.

Gordon had the authority to instruct

Mr. Rookaird to tie up and go home.

Mr. Rookaird disobeyed Mr. Gordon’s

two commands to tie up and go home

and instead began an argument with

another employee. BNSF believed that

Mr. Rookaird’s refusal to comply with

Mr. Gordon’s instructions to tie up and

go home constituted insubordination

under Appendix C of the PEPA policy.

Finally, BNSF terminated Mr.

Rookaird for his failure to work

efficiently. On February 23, 2010, Mr.

Rookaird and his crew were assigned

several

tasks,

which

included

retrieving engines from Ferndale,

moving 42 cars into storage at Custer,

and servicing customers at Cherry

Point. About five and a half hours into

their shift, Mr. Rookaird and his crew

had still not completed the moving of the

cars into storage. BNSF believed that

they were inefficient in accomplishing

their tasks for that day and called

them in accordingly. One reason for the

delay was Mr. Rookaird’s decision to

conduct an air test, a test that BNSF

believed to be unnecessary. BNSF

concedes

that

Mr.

Rookaird’s

conducting of the air test contributed

to the crew’s supposed inefficiency and

delay.

Id. at *3–4 (citations, section headers,

paragraph breaks, and paragraph numbers

omitted).

In 2014, Rookaird brought this action

against BNSF under the FRSA, alleging that BNSF

fired him in retaliation for the protected activity of

testing the air brakes. Rookaird had the burden of

proving that BNSF fired him, at least in part, for

protected activity. 49 U.S.C. §§20109(d)(2)(A)(i);

42121(b)(2)(B)(iii). BNSF nevertheless could defeat

liability by showing, by clear and convincing

evidence, that it would have fired Rookaird anyway,

even if he had not engaged in protected activity. Id.

§ 42121(b)(2)(B)(iv).

The district court granted partial summary

judgment to Rookaird on the issue whether the airbrake test contributed to his firing, but the court

concluded that genuine issues of material fact

remained as to whether air-brake testing was

protected activity and whether BNSF met its

affirmative defense. In 2016, a jury found in

Rookaird’s favor and awarded damages.

BNSF timely appealed, and we vacated the

jury’s verdict and remanded for further proceedings.

Rookaird v. BNSF Ry. Co., 908 F.3d 451, 463 (9th Cir.

2018). We held that the district court erred by

granting partial summary judgment to Rookaird on

the issue whether the air-brake test contributed to

BNSF’s decision to fire him. Id. We expressed no

view on whether a new trial was warranted on the

affirmative defense. Id. at 463 n.8.

On remand, the parties stipulated to a bench

trial, and the district court scheduled a trial on two

substantive issues: (1) “whether Plaintiff could prove,

by preponderance of the evidence, that Mr. Rookaird’s

refusal to stop performing the air test was a

contributing factor in his termination”; and (2)

“whether BNSF could prove, by clear and

convincing evidence, that it would have fired Mr.

Rookaird absent the air test.” Parker, 2022 WL

897604, at *1. Before trial, Rookaird died, and

the court substituted Paul Parker, personal

representative of Rookaird’s estate, as Plaintiff. Id. at

*5.

The district court found in Plaintiff’s favor on

the first issue, whether Plaintiff met his burden of

proving that the air-brake test was a contributing

factor to the firing. Id. At *5–6. The court accurately

10a

explained that “[a] contributing factor ‘may be quite

modest,’ and such a factor may ‘play only a very

small role’ in the unfavorable personnel action.” Id. at

*5 (quoting Frost v. BNSF Ry. Co., 914 F.3d 1189,

1197 (9th Cir. 2019)) (brackets omitted). Applying

that minimal standard, the court concluded that the

air-brake test contributed to BNSF’s decision:

Because Mr. Rookaird was fired

for his inefficiency and because the

inefficiency was partly caused by the

protected activity of refusing to stop the

air test, the Court concludes that the air

test tended to affect in some way the

outcome of BNSF’s decision to fire Mr.

Rookaird. And because the air test

affected Mr. Rookaird’s termination, it

was a contributing factor in an

unfavorable personnel action alleged in

Mr. Rookaird’s complaint.

Id. at *6 (citations, quotation marks,

brackets, paragraph breaks, and paragraph

numbers omitted).

But the district court found in BNSF’s

favor on the second issue, whether BNSF met its

burden of proving, by clear and convincing

evidence, that it would have fired Rookaird

anyway, even if he had not tested the air brakes.

Id. at *6–7. The court accurately explained

that “[a]n employer can defeat a claim for

unlawful retaliation if it can prove, by clear and

convincing evidence, that the employer would

have taken the same unfavorable personnel

action in the absence of the protected activity.” Id.

at *6 (citations and internal quotation mark

11a

omitted). The court also correctly described the

burden of persuasion: “Clear and convincing

evidence

requires

greater

proof

than

preponderance of the evidence. To meet this

higher standard, a party must present sufficient

evidence to produce ‘in the ultimate factfinder an

abiding conviction that the asserted factual

contentions are highly probable.’” Id. (quoting

OTR Wheel Eng’g, Inc. v. W. Worldwide Servs.,

Inc., 897 F.3d 1008, 1020 (9th Cir. 2018))

(brackets and some internal quotation marks

omitted).

Applying that standard, the court “conclude[d],

by clear and convincing evidence, that absent the air

test BNSF would have still fired Mr. Rookaird.” Id.

Mr. Rookaird was fired for many

reasons unrelated to his inefficiency. He

was fired for gross dishonesty, having

failed to sign his FRSA tie-up timeslip

and having falsely recorded his tie-up

time. BNSF believed that this

dishonesty was significant because of its

federal reporting obligations and the

potential fines it could have incurred for

failing to meet those obligations.

Separately, Mr. Rookaird was fired for

insubordination, having twice disobeyed

BNSF assistant superintendent Stuart

Gordon’s commands to tie-up and go

home. Mr. Rookaird not only disobeyed

Mr. Gordon’s two commands but also

started a heated argument with a

coworker. Both gross dishonesty and

insubordination were single, dismissible

12a

violations under the PEPA policy, which

governed Mr. Rookaird’s discipline.

What is more, though the air test

was a contributing factor in Mr.

Rookaird’s termination, the Court

concludes that the test contributed very

little. To start, the test did not even

account for all of Mr. Rookaird’s

supposed inefficiency on February 23,

2010. Mr. Rookaird and his crew were

working for about five-and-a-half hours

before they were called in. Yet the air

test only accounted for about 20 to 40

minutes of those five-and-a-half hours.

In addition, no BNSF officer instructed

Mr. Rookaird to stop the air test. Though

he doubted the air test’s necessity,

trainmaster Dan Fortt never instructed

Mr. Rookaird to stop the air test. Given

that there was no attempt to stop the air

test, this is yet more evidence that the

test played only a small part in BNSF’s

overall decision to fire Mr. Rookaird.

Further

undermining

the

significance of the air test is its routine

nature. At BNSF, air tests were

conducted hundreds of times a day or

more. And Mr. Rookaird conducted air

tests several times in the weeks leading

up to February 23, 2010 without

incident. This also demonstrates that

the test played only a small part in

BNSF’s overall decision to fire Mr.

Rookaird.

13a

Finally, Mr. Rookaird’s two crew

members, Mr. Webb and Mr. Belanger,

performed the same air test as Mr.

Rookaird but were not fired. They were

not fired because, unlike Mr. Rookaird,

they did not commit the single,

dismissible violations that Mr. Rookaird

committed.

They

were

not

insubordinate, and they did not

improperly complete their tie-up

timeslip. This further demonstrates

that inefficiency and the air test—

alone—would not have resulted in Mr.

Rookaird’s

termination.

also

demonstrates that, absent the air test,

BNSF would have fired Mr. Rookaird

anyway because of his gross dishonesty

and insubordination.

In all, the Court forms the

“abiding conviction” that even if Mr.

Rookaird did not engage in the protected

activity of refusing to stop the air test,

BNSF would have still fired him for his

gross dishonesty and insubordination.

OTR Wheel Eng’g, 897 F.3d at 1020.

Thus, the Court concludes that BNSF

has successfully proved its defense by

clear and convincing evidence.

Id. at *6–7 (paragraph breaks altered)

(paragraph numbers and most citations omitted).

Because BNSF proved its affirmative defense, the

court concluded that “BNSF is not liable for unlawful

retaliation under the FRSA.” Id. at *7.

14a

Plaintiff timely appeals. A majority of a threejudge panel vacated the district court’s decision and

remanded for further proceedings. Parker v. BNSF

Ry. Co., 112 F.4th 687, 704 (9th Cir. 2024). Judge

Graber dissented, stating that she would have

affirmed the district court’s decision. Id. at 704–13

(Graber, J., dissenting). A majority of active judges

voted to rehear the case en banc. Parker v. BNSF Ry.

Co., 122 F.4th 1072 (9th Cir. 2024) (order). The en

banc court heard oral argument on March 19, 2025.

DISCUSSION

The FRSA provides that a “railroad carrier…

may not discharge, demote, suspend, reprimand, or

in any other way discriminate against an employee

if such discrimination is due, in whole or in part, to”

specified categories of protected activity, such as

refusing to violate a regulation related to railroad

safety or testifying in certain railroad-related

enforcement proceedings. 49 U.S.C. § 20109(a).

Congress did not provide FRSA-specific burdens

of proof for retaliation claims; instead, Congress

chose to incorporate the burdens of proof found in a

different statutory scheme, the Wendell H. Ford

Aviation Investment and Reform Act for the 21st

Century (“AIR21”), 49 U.S.C. § 42121(b). See id. §

20109(d)(2)(A)(i) (providing that any action

brought under the FRSA “shall be governed by the

legal burdens of proof set forth in section

42121(b)”).

Those burdens of proof

are

straightforward and well understood, in part

15a

because many statutory schemes use the same

burdens. 1

At trial, the plaintiff bears an initial burden to

prove, by a preponderance of the evidence, that the

protected activity was “a contributing factor in the

unfavorable personnel action alleged in the

complaint.” 49 U.S.C. § 42121(b)(2)(B)(i). If the

plaintiff meets that burden, then the employer bears

the burden to prove, “by clear and convincing

evidence,” that it “would have taken the same

unfavorable personnel action in the absence of [the

protected] behavior.” Id. § 42121(b)(2)(B)(ii). That

burden-shifting framework is, with respect to the

overall burden faced by a plaintiff, “more lenient

than most.” Murray v. UBS Sec., LLC, 601 U.S. 23,

35 (2024). “[B]y design,” the framework is “not as

protective of employers” as the framework adopted

in many other employment statutes. Id. at 39.

Congress incorporated the AIR21 standards expressly in

several other statutes, including the Sarbanes-Oxley Act of

2002, 18 U.S.C. § 1514A(b)(2); the Surface Transportation

Assistance Act, 49 U.S.C. § 31105(b); the Criminal Antitrust

Anti-Retaliation Act of 2019, 15 U.S.C. § 7a-3(b)(2); the William

M. (Mac) Thornberry National Defense Authorization Act for

Fiscal Year 2021, Pub. L. No. 116-283, § 6314, 134 Stat. 3388,

4601 (amending 31 U.S.C. § 5323(g)(3)(A)); and the Taxpayer

First Act, 26 U.S.C. § 7623(d)(2)(B). And Congress provided

similar legal burdens in more statutes still, including the Motor

Vehicle and Highway Safety Improvement Act of 2012,

49 U.S.C. § 30171(b)(2)(B); the FDA Food Safety Modernization

Act, 21 U.S.C. § 399d(b)(2)(C); the Consumer Product Safety

Improvement Act of 2008, 15 U.S.C. § 2087(b)(2)(B); the

Energy Policy Act of 1992, 42 U.S.C. § 5851(b)(3); and the

American Recovery and Reinvestment Act of 2009, Pub. L. No.

111-5, § 1553(c)(1)(B), 123 Stat. 115, 299.

16a

A. The Plaintiff’s Initial Burden

The small burden that a plaintiff faces initially

is one aspect of the lenient standard. The plaintiff

need not prove retaliatory intent or motive. Id.;

Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir.

2010). Instead, the plaintiff must prove only that the

protected activity was a “contributing factor” in the

adverse employment decision.

49 U.S.C. §

42121(b)(2)(B)(i). “A ‘contributing factor’ includes ‘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 (quoting

Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th

Cir. 2017)). The plaintiff may meet this burden by

showing that protected activity played some role in

the employer’s decision-making process. Frost, 914

F.3d at 1196–97. Indeed, even if the protected activity

“played only a very small role in [the employer’s]

decision-making process,” the plaintiff has met the

initial burden. 2 Id. at 1197; see Murray, 601 U.S. at

37 (holding that the contributing-factor standard

reflects the judgment that employers should not

punish—“not even a little bit”— protected activity).

Finally, the plaintiff must make that showing only by

a preponderance of the evidence, Rookaird, 908 F.3d

That minimal burden is fully consistent with the FRSA’s legal

rule that a plaintiff must prove that an adverse action was “due,

in whole or in part, to” protected activity. 49 U.S.C. § 20109(a)

(emphasis added). AIR21’s burdens capture the notion that

protected activity may not play any role, even a small one, in an

adverse employment action. Nothing in the text of the FRSA

alters the AIR21 burdens.

17a

at 460, the default standard of proof in civil litigation,

E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 50 (2025).

But a minimal standard does not mean no

standard at all. An employee may not prevail simply

by showing engagement in protected activity. A

plaintiff must persuade the factfinder that the

protected activity played some role in the employer’s

decision. Frost, 914 F.3d at 1196–97. If the factfinder

concludes that protected activity played no role

whatsoever, then the plaintiff has not met the initial

burden, and the plaintiff’s FRSA claim must fail. Id.

The district court here correctly applied those

legal rules in determining that the air-brake test

contributed to BNSF’s firing decision and that,

accordingly, Plaintiff met his initial burden. The court

announced the correct legal principles. Parker, 2022

WL 897604, at *5–6. And the court permissibly

determined that the air-brake test played a role in

BNSF’s firing decision. Id. at *6. More specifically, the

court found that (a) in assessing a worthy response for

Rookaird’s conduct on the day in question, BNSF’s

managers considered—along with other factors—the

crew’s inefficiency; and (b) “the crew’s inefficiency was

partly caused by Mr. Rookaird’s decision to conduct

an air test—a test that BNSF managers thought was

unnecessary to conduct in the first place.” Id. The

court further concluded that the air-brake test had

“contributed very little” to the firing decision. Id. at

*7. But because even a small contribution suffices,

Plaintiff prevailed at this step of the analysis. Id. at

*5–6.

B. The Defendant’s Affirmative Defense

Another lenient aspect of the AIR21 standard

is that the defendant faces a “steep burden” in proving

18a

the affirmative defense. Araujo v. N.J. Transit Rail

Operations, Inc., 708 F.3d 152, 162 (3d Cir. 2013). To

defeat liability, the employer must prove that it

“would have taken the same unfavorable personnel

action in the absence of [the protected] behavior.” 49

U.S.C. § 42121(b)(2)(B)(ii). And the employer must

meet that burden “by clear and convincing evidence.”

Id. Both aspects—(1) what the employer must prove

and (2) the legal standard—contribute to the high bar

that an employer must clear in order to avoid liability.

Concerning the first aspect, the employer must

prove that it “would have” taken the same personnel

action had the employee not engaged in protected

activity; proving simply that it “could have” taken the

same personnel action does not suffice. Speegle v.

Stone & Webster Constr., Inc., ARB No. 13-074, 2014

WL 1870933, at *7 (U.S. Dep’t of Lab. Admin. Rev.

Bd. Apr. 25, 2014) (emphases added) (internal

quotation marks omitted); see id. (explaining that “it

is not enough to show that [the employee’s] conduct

provided a sufficient independent reason to suspend

and fire him”; instead, the employer must show “that

the employer would have done so”). “The right way to

think about that kind of same-action causation

analysis is to ‘change one thing at a time and see if

the outcome changes.’” Murray, 601 U.S. at 38

(quoting Bostock v. Clayton County, 590 U.S. 644, 656

(2020)). The relevant question here “is whether the

employer would have ‘retained an otherwise identical

employee’ who had not engaged in the protected

activity.” Id. (quoting Bostock, 590 U.S. at 660)

(brackets omitted).

In considering that inquiry, it is irrelevant that

the plaintiff faced a minimal initial burden or that the

statute prohibits even a small amount of

19a

discrimination.

The

FRSA’s

prohibition

discrimination “in whole or in part” has no effect on

the affirmative defense. Congress chose both to

prohibit even a small amount of discrimination and to

allow an employer nevertheless to “defeat the claim”

if it can show that it would have taken the same

personnel action anyway. Frost, 914 F.3d at 1195.

Those two concepts coexist. In some cases, such

as this one, an employer may consider, and cite, many

reasons for an adverse action but would have made

the same ultimate decision even if some of those

reasons were absent. In other cases, the factfinder

might conclude that each of the factors was critical to

the employment decision; or that the protected

activity was the only reason for the decision; or that

the employer otherwise failed to prove that nonprotected activity would have led the employer to the

same decision. The key point is that the employer’s

affirmative defense, which arises only after the

plaintiff has met the initial burden, is a distinct

inquiry from the plaintiff’s initial burden. The finding

of a contributing factor is the necessary predicate for

the affirmative defense, not some smoking gun that

disproves or discredits the affirmative defense

(especially where, as here, the district court found

that the protected conduct contributed very little to

the firing decision).

Nor does it matter how the plaintiff met the

initial burden. Regardless of method—finding by a

jury, ruling at summary judgment, concession,

stipulation, estoppel, or some other reason—once the

plaintiff meets the initial burden, that part of the case

passes out of the picture, and“[t]he burden then shifts

to the employer” to prove the affirmative defense.

Murray, 601 U.S. at 26.

20a

Whether the employer would have taken the

same action had the employee not engaged in

protected activity is an intensely factual question

and, depending on the facts, a wide range of evidence

and factors may bear on the inquiry. Each case is

different, and some factors that are critical in one case

may shed little light in another case. No particular

type of evidence is required. Rather than attempt to

list all factors that may be relevant, we note simply

that a factfinder must “holistically consider any and

all relevant, admissible evidence.” Brousil v. U.S.

Dep’t of Lab., Admin. Rev. Bd., 43 F.4th 808, 812 (7th

Cir. 2022) (quoting Clem v. Comput. Scis. Corp., ARB

No. 16-096, 2019 WL 4924119, at *12 n.8 (U.S. Dep’t

of Lab. Admin. Rev. Bd. Sept. 17, 2019)).

The applicable legal standard also contributes

to the employer’s high bar to defeating an FRSA

claim. Whereas a plaintiff must meet a

“preponderance of the evidence” standard, Rookaird,

908 F.3d at 454, the employer must prove the

affirmative defense “by clear and convincing

evidence,” 49 U.S.C. § 42121(b)(2)(B)(ii). Proof by

clear and convincing evidence is a “heightened”

standard, E.M.D. Sales, 604 U.S. at 50, that falls

“between a preponderance of the evidence and proof

beyond a reasonable doubt,” Addington v. Texas, 441

U.S. 418, 425 (1979). To meet the standard, the

employer must “place in the ultimate factfinder an

abiding conviction that the truth of its factual

contentions are ‘highly probable.’” Florida v. Georgia,

592 U.S. 433, 439 (2021) (quoting Colorado v. New

Mexico, 467 U.S. 310, 316 (1984)).

21a

We review for clear error whether the employer

has met the affirmative defense. 3 Under that

standard, we reverse only if the district court’s finding

is “illogical, implausible, or without support in

inferences from the record.” Chaudhry v. Aragón, 68

F.4th 1161, 1171 (9th Cir. 2023) (citation and internal

quotation mark omitted). We must have a “definite

and firm conviction that a mistake has been

committed” to justify reversal. Long v. Sugai, 91 F.4th

1331, 1339 (9th Cir. 2024) (quoting Anderson v.

Bessemer City, N.C., 470 U.S. 564, 573 (1985))

(internal quotation mark omitted). In the specific

context here, “we will upset the district court’s finding

3 See Clairmont v. Sound Mental Health, 632 F.3d 1091, 1108

(9th Cir. 2011) (holding that whether an employer “would have

reached the same adverse employment decision even in the

absence of the employee’s protected conduct” is “purely a

question of fact” (brackets, citations, and internal quotation

marks omitted)); see also Baloga v. Pittston Area Sch. Dist., 927

F.3d 742, 752 n.7 (3d Cir. 2019) (citing an earlier precedent for

the rule that “whether the employer would have taken [an]

action regardless” is a “question[] for the jury”); Koszola v. FDIC,

393 F.3d 1294, 1300 (D.C. Cir. 2005) (holding that the appellate

court reviews “for clear error” “the district court’s finding by

clear and convincing evidence that the [employer] would have

fired [the employee] regardless of any alleged protected

activity”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 584 (6th

Cir. 2000) (holding that whether the employer “would have

terminated [the employee] in the absence of his protected

conduct. . . is a question of fact for the jury to decide”); Bellaver

v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000) (holding that

whether the employer “would have fired [the employee] in the

absence of discrimination” is a determination “best left in the

hands of a jury”); Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183,

193 (4th Cir. 1994) (holding that the determination “whether

[the employee] would have been fired ‘but for’ her protected

speech . . . is a factual one, and therefore, is not to be reversed

absent clear error” (internal citation omitted)).

22a

of ‘clear and convincing evidence’ . . . only if we are

firmly convinced that it was merely probable or

unlikely that the [employer] would have fired [the

employee] regardless of any protected [activity].” 4

Koszola, 393 F.3d at 1300.

Applying those principles, we conclude that the

district court correctly applied the legal standard and

permissibly concluded that BNSF cleared the AIR21

standard’s high bar.

The court committed no legal error. It

accurately recognized that BNSF was required to

meet the affirmative defense “by clear and convincing

evidence.” Parker, 2022 WL 897604, at *1, *5–7. It

also appreciated the proper legal standard,

repeatedly framing the inquiry as whether BNSF

“would have” fired Rookaird had he not tested the air

brakes. Id.

The court did not clearly err in finding that

BNSF would have fired Rookaird anyway, had he not

engaged in the protected activity of testing the air

brakes. The court found that BNSF fired Rookaird for

several reasons. Id. at *3. The air-brake test related

to only one of those reasons: inefficient work. Id. at

*6. But the air-brake test accounted for only twenty

to forty minutes of the crew’s five-and-a-half hours of

inefficient work, no one told the crew to stop the airbrake test, and air-brake tests were routine. Id. at *7.

Depending on who prevails before the factfinder, the

deferential standard of review sometimes favors employees,

Fresquez v. BNSF Ry. Co., 52 F.4th 1280, 1307–11 (10th Cir.

2022), and sometimes favors employers, Brousil, 43 F.4th at

812–13.

23a

The district court also found that BNSF fired

Rookaird “for many reasons unrelated to his

inefficiency.” 5 Id. at *6.

The court concluded that BNSF fired Rookaird

because he lied on his timesheet and failed to sign it,

violations of work rules that independently

warranted dismissal. Id. at *6–7. The court credited

the evidence that “dishonesty was significant [to

BNSF] because of its federal reporting obligations and

the potential fines it could have incurred for failing to

meet those obligations.” Id. at *6. Another reason why

BNSF fired Rookaird, the court concluded, was that

he twice disobeyed orders to leave the premises

(causing a heated argument with a co-worker while

he remained on site), which is also an independently

dismissible violation. Id. at *6–7. Both the general

manager who decided to fire Rookaird and the Human

Resources employee who reviewed the record and

concurred in the firing decision testified that the

dishonesty and insubordination independently

justified Rookaird’s dismissal.

The court additionally observed that BNSF

imposed a much lesser sanction on the other two

members of Rookaird’s crew. Id. at *7. Although those

crewmembers, too, had worked inefficiently, they had

5 Parker challenges the district court’s finding that BNSF fired

Rookaird for “gross dishonesty” and “insubordination” even

though the description in Rookaird’s termination letter did not

use those exact words. But the record fully supports the court’s

finding. The letter specifically describes Rookaird’s conduct and

identifies the rules that BNSF determined Rookaird had

violated, including rules that use the terms “insubordination”

and “gross dishonesty.” The district court did not clearly err.

24a

not committed gross dishonesty or insubordination.

Id.

Considering the record as a whole, the district

court’s analysis is logical, plausible, and supported by

the evidence. The court logically determined that the

other, strong reasons for the firing—gross dishonesty,

insubordination, and inefficiency unrelated to airbrake testing—overwhelmed the relatively tiny role

that the air-brake test played.

There was nothing improper about the district

court’s analysis in that regard. As a matter of common

sense, the role that the protected activity played in

the firing decision bears directly on the credibility of

an employer’s explanation that it would have fired the

employee in the absence of the protected activity. For

example, if the protected activity was the centerpiece

of a firing decision, an employer will have a much

harder time convincing a finder of fact that it would

have fired the employee anyway. Or, as here, if the

protected activity played only a small role and the

nonprotected conduct was egregious, then the

employer’s “we would have fired him anyway”

explanation has more credibility. Nothing in the law

suggests that a factfinder must disregard the logically

salient factor of the role that the protected activity

played in the firing decision.

On the other hand, an employer does not

necessarily escape liability merely because the

protected activity played only a small role in the

personnel action. The factfinder must consider all

relevant evidence in determining whether the

employer has met its burden of proving, by clear and

convincing evidence, that it would have taken the

identical action in the absence of the protected

25a

activity. Here, the district court reasonably weighed

the evidence in reaching its conclusion that BNSF’s

explanation in this case was credible.

The district court also properly considered the

discipline that Rookaird’s crewmembers received.

Comparator evidence can be useful in assessing

whether the employer would have fired the plaintiff

anyway. Araujo, 708 F.3d at 161. The ideal

comparator would be identical in all respects to the

plaintiff except that the hypothetical coworker did not

engage in the protected activity. No real-world

comparator will fit that bill, but understanding how

the employer disciplined similar conduct will

nevertheless provide inferences useful to a factfinder.

Here, Rookaird’s crewmembers also engaged in the

air-brake test and the inefficient work but, unlike

Rookaird, they accurately and timely signed out and

followed the instruction to go home. The lesser

punishment for the other crewmembers supports the

inference that—consistent with BNSF’s written

policies—BNSF viewed Rookaird’s dishonesty and

insubordination as the most egregious misconduct.

In sum, the air-brake test comprised only about

ten percent of the time that Rookaird and his

crewmates worked inefficiently (which is not an

independently dismissible offense anyway); the test

had nothing at all to do with Rookaird’s dishonesty

and insubordination (either of which is an

independently dismissible offense); and Rookaird’s

crewmembers, who did not engage in dishonest or

insubordinate conduct, received lesser punishment.

In these circumstances, the district court reasonably

found that BNSF would have fired Rookaird anyway,

and we are not “firmly convinced that it was merely

probable or unlikely that [BNSF] would have fired

26a

[Rookaird] regardless of any protected [activity].”

Koszola, 393 F.3d at 1300.

We stress that none of the evidence discussed

above or elsewhere in the record necessarily

compelled the district court’s conclusion regarding

BNSF’s affirmative defense. Another factfinder could

have viewed the evidence differently, credited other

testimony, or simply reached the opposite ultimate

finding. Our task on appellate review is not to assess

how we would rule as a factfinder; our task is to

review the district court’s finding for clear error.

Because the court did not clearly err, we affirm. 6

AFFIRMED.

Plaintiff also raises two evidentiary challenges. We agree with,

and adopt, the three-judge panel’s rejection of those challenges.

Parker, 112 F.4th at 703–04.

27a

APPENDIX B – DISTRICT COURT FINDSINGS

OF FACT AND CONCLUSIONS OF LAW,

FILED MARCH 28, 2022

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PAUL W. PARKER, as Personal Representative of

the Estate of Curtis John Rookaird,

Plaintiff-Appellee

BNSF RAILWAY COMPANY, a Delaware

corporation,

Defendant-Appellant.

Case No. 2:14-cv-00176-RAJ

Richard A. Jones, United States District Judge

ORDER

28a

INTRODUCTION

On February 4, 2014, then-Plaintiff Curtis

Rookaird sued Defendant BNSF Railway Company

(“BNSF”) under 49 U.S.C. § 20109(d)(3), alleging that

the railway violated the anti-retaliation provision of

the Federal Railroad Safety Act (“FRSA”). Dkt.# 1.

Two years later, in 2016, the Court tried this case to a

verdict. Dkt. ## 202, 204-06, 209, 212, 215, 219. After

the first trial, the jury found in Mr. Rookaird’s favor.

Dkt.# 219, 221. Later, however, the Ninth Circuit

vacated the jury verdict and remanded to this Court

to retry certain issues. Dkt. # 310. On remand, the

parties stipulated to a bench trial, and the Court

heard this matter on October 25, 2021 through

October 28, 2021. Dkt. ## 454-58. The parties later

submitted proposed findings of fact and conclusions of

law. Dkt. ## 471, 472.

The procedural posture of this case affected

both the issues and evidence presented at trial. On

remand, the issues to be retried were limited to

whether Plaintiff could prove, by preponderance of the

evidence, that Mr. Rookaird’s refusal to stop

performing the air test was a contributing factor in his

termination; whether BNSF could prove, by clear and

convincing evidence, that it would have fired Mr.

Rookaird absent the air test; and damages. Dkt. # 365

at 1-5. As to the evidence presented, the bench trial

included the live testimony of several lay and expert

witnesses and the admission of various exhibits into

evidence. But given that the facts underlying this

case occurred long ago and that many witnesses had

already testified at the first trial, both parties also

submitted deposition and trial designations for the

Court’s consideration. Dkt. ## 468-69.

Pursuant to Federal Rule of Civil Procedure 52,

29a

the Court enters the following findings of fact and

conclusions of law, which are based upon

consideration of all the admissible evidence and this

Court’s own assessment of the credibility of the trial

witnesses. To the extent, if any, that Findings of Fact,

as stated, may be considered Conclusions of Law, they

shall be deemed Conclusions of Law. Similarly, to the

extent, if any, that Conclusions of Law, as stated may

be considered Findings of Fact, they shall be deemed

Findings of Fact.

II.

FINDINGS OF FACT

February 23, 2010

On February 23, 2010, Mr. Rookaird reported

for work at BNSF’s Swift depot location in

Blaine, Washington. Dkt. # 441 at 16.

He began his shift at 2:30 P.M. Id.

Mr. Rookaird, a conductor, was accompanied

by engineer Peter Belanger and brakeman

Matthew Webb. Id. at 18, 149.

That day, the three-person crew was given

several tasks. Primarily, the crewmembers

were supposed to go from Swift to Cherry Point,

where they would service customers. Dkt. # 440

at 87-88, 103; Dkt. # 441 at 26-27. Before going

to Cherry Point, however, the crew members

were instructed first to take a van, from Swift,

south to Ferndale, where certain locomotives

were waiting. Dkt. # 440 at 103-104; Dkt. # 441

at 26-27. From Ferndale, they were supposed

to take the locomotives back north to Custer,

which sits between Ferndale and Swift. Dkt. #

440 at 103; Dkt. # 441 at 35. At Custer, they

were supposed to move 42 railway cars onto

30a

storage tracks. Dkt. # 440 at 103-04; Dkt. # 441

at 19, 22, 154. Finally, after moving the cars

onto storage tracks, they were supposed to take

a van to Cherry Point to service BNSF

customers. Dkt. # 440 at 134; Dkt. # 441 at 9192.

As instructed, Mr. Rookaird and his crew

departed Swift for Ferndale. Dkt.# 440 at 10506; Dkt. # 441 at 29-30.

Once they arrived at Ferndale, they took two

locomotives north to Custer so that they could

move the 42 cars onto storage tracks. Dkt. #

441 at 35, 153.

While they were moving the cars at Custer, the

crew members decided to perform an air test.

Id. at 63, 76-77.

The air test took about 20 to 40 minutes to

perform. Id. at 77, 160.

At BNSF, air tests are routine given that they

are conducted hundreds of times a day or more.

Dkt. # 466 at 33.

10.

Indeed, Mr. Rookaird conducted air tests

several times weeks before without reprisal. Id.

at 33-34.

11.

During the air test, BNSF trainmaster Dan

Fortt called the crew members on the radio and

asked them why they were conducting the test.

Dkt. # 441 at 78. He said, “I’m not from around

here, and I don’t know how you guys do

anything. But from where I’m from, we don’t

have to air test the cars.” Id. at 79.

12.

Despite his remarks, Mr. Fortt did not instruct

31a

the crew

to stop the air test. Id. at 80, 160.

13.

The crew later completed the test. Id.

14.

Later, while the crew was moving the 42 cars,

Mr. Fortt contacted the crew again. Id. at 85.

This time, Mr. Fortt asked how much longer

the crew was going to take to complete the

moving of the cars into storage, and Mr.

Rookaird estimated that it would take another

hour or two. Id. at 85-86.

15.

After discovering how much longer it would

take, Mr. Fortt instructed the crew to tie the

cars down to the main line because another

crew was going to complete the job. Id. at 89;

Dkt. # 423-2 at 31-32. He then instructed Mr.

Rookaird’s crew to report back to the Swift

depot. Dkt. # 466 at 58-59; Dkt. # 423-2 at 26.

16.

By that time, which was about 7:30 P.M., or

about five hours since Mr. Rookaird and his

crew started their shift, Mr. Fortt and BNSF

assistant superintendent Stuart Gordon

believed that the crew was inefficient and that

the crew should have been farther along in

their work assignment. Dkt. # 466 at 49, 58-59,

102-03; Dkt. # 441 at 161; Dkt. # 423-2 at 32.

17.

The crewmembers then returned to the Swift

depot. Dkt. # 441 at 161.

18.

When they arrived, Mr. Gordon told them to tie

up and go home. Id. at 92-93, 161-62; Dkt. # 466

at 61-62.

19.

“Tying up” refers to the process of completing a

“tie-up” sheet to comply with Federal Railroad

32a

Administration regulations. Dkt. # 465 at 16566.

20.

Mr. Rookaird completed his tie-up slip at 8:02

P.M., yet he recorded his tie-up time as 8:30

P.M. Dkt. # 441 at 94; Ex. 521 at 2.

21.

Though he completed the tie-up slip, Mr.

Rookaird did not sign the slip. Dkt. # 441 at

162; Ex. 521 at 2.

22.

Then, instead of going home as instructed, Mr.

Rookaird went to the lunch room and argued

with another employee. Dkt. # 441 at 93, 97-98,

104; Dkt. # 466 at 62-63; Ex. 532 at 108.

23.

The argument escalated, prompting Mr.

Gordon to intervene. Dkt. # 441 at 105; Dkt. #

466 at 62-63.

24.

Mr. Gordon again instructed Mr. Rookaird to

leave. Dkt. # 466 at 62-63; Ex. 532 at 106-07.

25.

Mr. Rookaird did not leave and instead

continued to argue. Dkt. # 466 at 63; Ex. 532 at

106-08.

26.

Mr. Gordon instructed Mr. Rookaird to leave

for a third time. Dkt. # 466 at 63; Ex. 532 at

106-08.

27.

It was only then that Mr. Rookaird, in fact, left.

Dkt. # 466 at 63; Ex. 532 at 106-08.

B. Investigation

28.

On February 26, 2010, BNSF sent Mr.

Rookaird a letter informing him that he was

being investigated for his actions days earlier

on February 23. Ex. 526. He was to be

33a

investigated for his failure to work efficiently,

dishonesty when reporting his off-duty time,

failure to provide a signed FRA tie-up timeslip,

and failure to comply with instructions when

instructed to leave the property. Id.; Ex. 529.

29.

Later, BNSF officer Robert Johnson conducted

an investigation. Exs. 529, 532. The

investigation lasted about 12 hours and was

transcribed. Ex. 532.

30.

Mr. Johnson summarized the investigation and

sent his summary to James Hurlburt and Doug

Jones. Ex. 8. At the time, Mr. Hurlburt was the

director of employee performance, and Mr.

Jones was the general manager of the

Northwest Division. Dkt. # 423-3 at 3; Dkt. #

465 at 66.

31.

Mr. Hurlburt reviewed the investigation

transcript and Mr. Johnson’s summary. Dkt. #

423-3 at 6. After conducting his own

independent evaluation, Mr. Hurlburt made a

recommendation to Mr. Jones to dismiss Mr.

Rookaird. Id.

32.

Ultimately, Mr. Jones, who as the general

manager had decision-making authority with

respect to terminations, decided to fire Mr.

Rookaird. Id.; Dkt. # 465 at 66, 70, 73-74. Mr.

Jones based his decision on the investigation

transcript, Mr. Johnson’s summary, and

discussions with Mr. Hurlburt. Dkt. # 465 at

66, 146. Based on his review, Mr. Jones

concluded that Mr. Rookaird had committed

significant rule violations that harmed BNSF.

Id. at 143.

34a

C. Termination

33.

On March 19, 2010, BNSF fired Mr. Rookaird.

Ex. 63.

34.

BNSF fired Mr. Rookaird for four reasons: he

failed to work efficiently, he was dishonest

when reporting his off-duty time, he failed to

provide a signed FRA tie-up slip, and he failed

to comply with instructions when he was

instructed to leave the property. Id. All four

reasons stemmed from Mr. Rookaird’s actions

on February 23, 2010.

35.

BNSF fired Mr. Rookaird in accordance with its

Policy for Employee Performance and

Accountability (“PEPA policy”). Id.; Dkt. # 465

at 71.

36.

The PEPA policy outlined several types of rule

violations and their consequences. The most

severe type of violation was a dismissible

violation. A single dismissible violation could

result in the ultimate sanction of dismissal. A

list of single aggravated offenses that were

considered dismissible was contained in

Appendix C of the PEPA policy. Dkt. # 465 at

75; Ex. 546.

37.

Under Appendix C of the PEPA policy, a single

dismissible violation included gross dishonesty

and insubordination. Dkt. # 465 at 75; Ex. 324;

Ex. 546 at 7.

i. Gross Dishonesty

38.

BNSF terminated Mr. Rookaird for his gross

dishonesty. Dkt. # 465 at 170-73; Ex. 324; Dkt.

# 423-3 at 6-7.

35a

39.

Mr. Rookaird recorded his tie-up time as 8:30

P.M. when he, in fact, completed his tie-up slip

28 minutes earlier at 8:02 P.M. Dkt. # 441 at 94,

152; Ex. 521 at 2. He also did not sign his tie-up

slip. Dkt. # 441 at 162; Ex. 521 at 2.

40.

BNSF believed that this was improper and

dishonest. Dkt. # 465 at 166-67; Dkt. # 423-3 at

6-8. It believed that this dishonesty was

significant because it believed that maintaining

proper tie-up slips was essential to complying

with federal regulations. Dkt. # 465 at 141, 16566; Dkt. # 423-3 at 6-8.

41.

BNSF believed that Mr. Rookaird’s failure to

sign his FRA tie-up timeslip and his inaccurate

reporting of his tie-up time constituted gross

dishonesty under Appendix C of the PEPA

policy. Dkt. # 465 at 170-72; Dkt. # 423-3 at 6-8;

Ex. 324.

ii. Insubordination

42.

BNSF also terminated Mr. Rookaird for his

insubordination. Dkt. # 465 at 76-77, 165, 170;

Ex. 324; Dkt. # 423-3 at 8.

43.

Mr. Gordon had the authority to instruct Mr.

Rookaird to tie up and go home. Dkt. # 465 at

163-64.

44.

Mr. Rookaird disobeyed Mr. Gordon’s two

commands to tie up and go home and instead

began an argument with another employee.

Dkt. # 441 at 92-93, 97-98, 105, 161-62; Dkt. #

466 at 61-63; Ex. 532 at 106-8.

45.

BNSF believed that Mr. Rookaird’s refusal to

comply with Mr. Gordon’s instructions to tie up

and go home constituted insubordination

36a

under Appendix C of the PEPA policy. Dkt. #

465 at 76-77, 165, 170; Ex. 324; Dkt. # 423-3 at

iii. Inefficiency and Air Test

46.

Finally, BNSF terminated Mr. Rookaird for his

failure to work efficiently. Dkt. # 465 at 82,

108-09; Dkt. # 466 at 41; Ex. 324; Dkt. # 423-3

at 9.

47.

On February 23, 2010, Mr. Rookaird and his

crew were assigned several tasks, which

included retrieving engines from Ferndale,

moving 42 cars into storage at Custer, and

servicing customers at Cherry Point. Dkt. # 440

at 87-88, 103-04, 134; Dkt. # 441 at 19, 22, 2627, 91-92, 154.

48.

About five and a half hours into their shift, Mr.

Rookaird and his crew had still not completed

the moving of the cars into storage. Dkt. # 441

at 84-86, 89.

49.

BNSF believed that they were inefficient in

accomplishing their tasks for that day and

called them in accordingly. Dkt. # 466 at 49, 5859, 102-03; Dkt. # 441 at 161; Dkt. # 423-2 at

32.

50.

One reason for the delay was Mr. Rookaird’s

decision to conduct an air test, a test that

BNSF believed to be unnecessary. Dkt. # 466 at

60, 121.

BNSF concedes that Mr. Rookaird’s conducting

of the air test contributed to the crew’s

supposed inefficiency and delay. Dkt. # 466 at

41-42, 70,124-25.

51.

37a

D. Discipline of Matthew Webb and Peter

Belanger

52.

Mr. Rookaird’s crewmembers on February 23,

2010, Matthew Webb and Peter Belanger, had

engaged in the same supposed inefficiency as

Mr.Rookaird.

53.

Like Mr. Rookaird, Mr. Webb and Mr. Belanger

were disciplined for their failure to work

efficiently. Exs. 3 & 5. But unlike Mr. Rookaird,

Mr. Webb and Mr. Belanger were not

dismissed. Instead, they each received a Level

S 30 Day Record Suspension and probation.

Exs. 3 & 5.

54.

Unlike Mr. Rookaird, Mr. Webb and Mr.

Belanger committed no other rule violations.

Mr. Webb and Mr. Belanger were not

disciplined for dishonesty in reporting their offduty time, for a failure to provide a signed FRA

tie-up slip, or for a failure to comply with

instructions when they were instructed to leave

the property. Dkt. # 465 at 171-72; Dkt. # 4233 at 12-13.

III.

CONCLUSIONS OF LAW

A. Procedural History

On February 4, 2014, then-Plaintiff Curtis

Rookaird brought this action pursuant to 49

U.S.C. § 20109, alleging that Defendant BNSF

Railway Company violated the anti-retaliation

provision of the Federal Railroad Safety Act

(“FRSA”).

A claim for retaliation under the FRSA has two

stages: a prima facie stage and a substantive

stage. Rookaird v. BNSF Ry. Co., 908 F.3d 451,

38a

459 (9th Cir. 2018). Each stage has its own

burden-shifting framework. Id.

At the prima facie stage, a plaintiff must make

“a prima facie showing that any protected

activity was a contributing factor in the

unfavorable personnel action alleged in the

complaint.” Id. at 459-60 (alteration omitted)

(quoting 49 U.S.C. § 42121(b)(2)(B)(i)). An

employer, on the other hand, can defeat the

plaintiff’s

claim

“if

the

employer

demonstrates, by clear and convincing

evidence, that the employer would have taken

the same unfavorable personnel action in the

absence of the protected activity.” Id. at 460

(alteration omitted) (quoting 49 U.S.C. §

42121(b)(2)(B)(ii)).

On the other hand, at the substantive stage, a

plaintiff must prove by a preponderance of the

evidence that the protected activity was, in

fact, a contributing factor in the unfavorable

personnel action. Id. at 460. The employer’s

burden, however, remains as it was at the

prima facie stage: an employer may defeat the

retaliation claim if it can demonstrate by clear

and convincing evidence that it would have

taken the same unfavorable action absent the

protected activity. Id.

Thus, although the employer has the same

burden in each stage, the plaintiff does not. Id.

After the first trial in this case, the jury

concluded that Mr. Rookaird engaged in the

FRSA-protected activity of refusing to stop the

air test. Dkt. # 221. On appeal, the Ninth

39a

Circuit upheld that determination. Rookaird,

908 F.3d at 455-59.

The Ninth Circuit also determined that Mr.

Rookaird successfully passed the prima facie

stage because “the circumstances were

sufficient to raise the inference that the air[]

test was a contributing factor in Rookaird’s

termination.” Id. at 462.

The Ninth Circuit vacated the verdict and

reversed, however, because it found a genuine

dispute of material fact as to whether Mr.

Rookaird proved his substantive case. Id. at

462-63.

On remand, the Court decided to retry several

issues: whether Mr. Rookaird could prove, by

preponderance of the evidence, that his refusal

to stop performing the air test was a

contributing factor in his termination; whether

BNSF could prove, by clear and convincing

evidence, that it would have fired Mr. Rookaird

absent the air test; and damages. Dkt. # 365 at

1-5.

10.

In September 2021, after the Ninth Circuit

remanded, but before this Court could retry the

case, Mr. Rookaird died. Dkt. # 411.

11.

The Court then substituted as a party Paul

Parker, who is the personal representative of

Mr. Rookaird’s estate. Id.

B. Substantive Stage – Contributing Factor

12.

At the substantive stage, the plaintiff must

prove by a preponderance of the evidence that

his protected conduct “was a contributing

factor in the unfavorable personnel action

40a

alleged in the complaint.” Frost v. BNSF Ry.

Co., 914 F.3d 1189, 1195 (9th Cir. 2019)

(quoting Rookaird, 908 F.3d at 460).

13.

A “contributing factor” includes “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) (quoting Gunderson

v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir.

2017)). A contributing factor “may be quite

modest,” and such a factor may “play[] only a

very small role” in the unfavorable personnel

action. Frost, 914 F.3d at 1197.

14.

To show a contributing factor, an employee

must prove “intentional retaliation” that was

“prompted by the employee engaging in

protected activity.” Rookaird, 908 F.3d at 461

(quoting Kuduk v. BNSF Ry. Co., 768 F.3d 786,

791 (8th Cir. 2014)). That said, the employee

need not “separately prove” an employer’s

subjective “discriminatory intent.” Frost, 914

F.3d at 1195. Rather, “[s]howing that an

employer acted in retaliation for protected

activity is the required showing of intentional

discrimination.” Id. (emphasis in original).

15.

The Court concludes, by preponderance of the

evidence, that Mr. Rookaird’s refusal to stop

the air test was a contributing factor in his

termination.

16.

Mr. Rookaird was fired, in part, for his

inefficiency on February 23, 2010. Dkt. # 465 at

82, 108-09; Dkt. # 466 at 41; Ex. 324; Dkt. #

423-3 at 9.BNSF believed that Mr. Rookaird

and his crew were taking too long to complete

41a

their assigned tasks for the day. Dkt. # 466 at

49, 58-59, 102-03; Dkt. # 441 at 161; Dkt. # 4232 at 32.

17.

BNSF concedes that the crew’s inefficiency was

partly caused by Mr. Rookaird’s decision to

conduct an air test—a test that BNSF

managers thought was unnecessary to conduct

in the first place. Dkt. # 466 at 41-42, 70, 60,

121, 124-25.

18.

Because Mr. Rookaird was fired for his

inefficiency and because the inefficiency was

partly caused by the protected activity of

refusing to stop the air test, the Court

concludes that the air test “tend[ed] to affect in

[some] way the outcome of [BNSF’s] decision”

to fire Mr. Rookaird. Rookaird, 908 F.3d at 461.

19.

And because the air test affected Mr.

Rookaird’s termination, it was a contributing

factor in an unfavorable personnel action

alleged in Mr. Rookaird’s complaint.

20.

Because Plaintiff has met his burden, the

burden shifts to BNSF.

C. Substantive Stage – BNSF’s Defense

21.

An employer can defeat a claim for unlawful

retaliation if it can prove, by clear and

convincing evidence, “that the employer would

have taken the same unfavorable personnel

action in the absence of the protected activity.”

Rookaird, 908 F.3d at 460 (alteration omitted)

(quoting 49 U.S.C.§ 42121(b)(2)(B)(iv)).

22.

“Clear and convincing evidence requires

greater proof than preponderance of the

evidence. To meet this higher standard, a party

42a

must present sufficient evidence to produce ‘in

the ultimate factfinder an abiding conviction

that [the asserted factual contentions are]

highly probable.’” OTR Wheel Eng’g, Inc. v. W.

Worldwide Servs., Inc., 897 F.3d 1008, 1020

(9th Cir. 2018)(alteration in original) (quoting

Sophanthavong v. Palmateer, 378 F.3d 859,

866-67 (9th Cir. 2004)).

23.

The Court concludes, by clear and convincing

evidence, that absent the air test BNSF would

have still fired Mr. Rookaird.

24.

Mr. Rookaird was fired for many reasons

unrelated to his inefficiency.

25.

He was fired for gross dishonesty, having failed

to sign his FRA tie-up timeslip and having

falsely recorded his tie-up time. Dkt. # 465 at

170-73; Ex. 324; Dkt. # 423-3 at 6-7. BNSF

believed that this dishonesty was significant

because of its federal reporting obligations and

the potential fines it could have incurred for

failing to meet those obligations. Dkt. # 465 at

141, 165-66; Dkt. # 423-3 at 6-8.

26.

Separately, Mr. Rookaird was fired for

insubordination, having twice disobeyed BNSF

assistant superintendent Stuart Gordon’s

commands to tie- up and go home. Dkt. # 465

at 76-77, 165, 170; Ex. 324; Dkt. # 423-3 at 8.

Mr. Rookaird not only disobeyed Mr. Gordon’s

two commands but also started a heated

argument with a coworker. Dkt. # 441 at 93, 9798, 104; Dkt. # 466 at 62-63; Ex. 532 at 108.

27.

Both gross dishonesty and insubordination

were single, dismissible violations under the

43a

PEPA policy, which governed Mr. Rookaird’s

discipline. Dkt. # 465 at 75; Ex. 324; Ex. 546 at

28.

What is more, though the air test was a

contributing factor in Mr. Rookaird’s

termination, the Court concludes that the test

contributed very little.

29.

To start, the test did not even account for all of

Mr. Rookaird’s supposed inefficiency on

February 23, 2010. Mr. Rookaird and his crew

were working for about five-and-a-half hours

before they were called in. Yet the air test only

accounted for about 20 to 40 minutes of those

five-and-a-half hours. Dkt. # 441 at 77, 160.

30.

In addition, no BNSF officer instructed Mr.

Rookaird to stop the air test. Though he

doubted the air test’s necessity, trainmaster

Dan Fortt never instructed Mr. Rookaird to

stop the air test. Dkt. # 441 at 78-80, 160.Given

that there was no attempt to stop the air test,

this is yet more evidence that the test played

only a small part in BNSF’s overall decision to

fire Mr. Rookaird.

31.

Further undermining the significance of the air

test is its routine nature. At BNSF, air tests

were conducted hundreds of times a day or

more. Dkt. # 466 at 33. And Mr. Rookaird

conducted air tests several times in the weeks

leading up to February 23, 2010 without

incident. Id. at 33-34. This also demonstrates

that the test played only a small part in BNSF’s

overall decision to fire Mr. Rookaird.

44a

32.

Finally, Mr. Rookaird’s two crew members, Mr.

Webb and Mr. Belanger, performed the same

air test as Mr. Rookaird but were not fired.

They were not fired because, unlike Mr.

Rookaird, they did not commit the single,

dismissible violations that Mr. Rookaird

committed. They were not insubordinate, and

they did not improperly complete their tie-up

timeslip. Dkt. # 465 at 171-72; Dkt. # 423-3 at

12-13. This further demonstrates that

inefficiency and the air test—alone—would not

have resulted in Mr. Rookaird’s termination. It

also demonstrates that, absent the air test,

BNSF would have fired Mr. Rookaird anyway

because of his gross dishonesty and

insubordination.

33.

In all, the Court forms the “abiding conviction”

that even if Mr. Rookaird did not engage in the

protected activity of refusing to stop the air

test, BNSF would have still fired him for his

gross dishonesty and insubordination. OTR

Wheel Eng’g, 897 F.3d at 1020. Thus, the Court

concludes that BNSF has successfully proved

its defense by clear and convincing evidence.

34.

The Court finds that BNSF is not liable for

unlawful retaliation under the FRA.

IV.

CONCLUSION

For the reasons previously stated, the Court

finds in favor of BNSF on Plaintiff’s unlawful

retaliation claim. The Clerk shall enter judgment for

BNSF.

DATED this 28th day of March, 2022

45a

/s/ Richard A. Jones

The Honorable Richard A. Jones

United States District Court

46a

APPENDIX C – RELEVANT STATUTORY

PROVISIONS

49 U.S.C § 20109

§ 20109. Federal Railroad Safety Act

Whistleblower Employee Protections

(a)

In General. A railroad carrier engaged in

interstate or foreign commerce, a contractor or a

subcontractor of such a railroad carrier, or an officer

or employee of such a railroad carrier, may not

discharge, demote, suspend, reprimand, or in any

other way discriminate against an employee if such

discrimination is due, in whole or in part, to the

employee's lawful, good faith act done, or perceived by

the employer to have been done or about to be done(1)

to provide information, directly cause

information to be provided, or otherwise

directly assist in any investigation regarding

any conduct which the employee reasonably

believes constitutes a violation of any Federal

law, rule, or regulation relating to railroad

safety or security, or gross fraud, waste, or

abuse of Federal grants or other public funds

intended to be used for railroad safety or

security, if the information or assistance is

provided to or an investigation stemming from

the provided information is conducted by(A)

a Federal, State, or local

regulatory or law enforcement agency

(including an office of the Inspector

General under chapter 4 of title 5;

47a

(B)

any Member of Congress, any

committee of

Congress, or

the

Government Accountability Office; or

authority over the employee or such

other person who has the authority to

investigate, discover, or terminate the

misconduct;

(2) to refuse to violate or assist in the violation

of any Federal law, rule, or regulation relating

to railroad safety or security;

(3) to file a complaint, or directly cause to be

brought a proceeding related to the

enforcement of this part or, as applicable to

railroad safety or security, chapter 51 or 57 of

this title, or to testify in that proceeding;

(4) to notify, or attempt to notify, the railroad

carrier or the Secretary of Transportation of a

work-related personal injury or work-related

illness of an employee;

(5) to cooperate with a safety or security

investigation

the

Secretary

Transportation, the Secretary of Homeland

Security, or the National Transportation

Safety Board;

(6) to furnish information to the Secretary of

Transportation, the Secretary of Homeland

Security, the National Transportation Safety

Board, or any Federal, State, or local

regulatory or law enforcement agency as to the

facts relating to any accident or incident

resulting in injury or death to an individual or

48a

damage to property occurring in connection

with railroad transportation; or

(7) to accurately report hours on duty pursuant

to chapter 211.

(b) Hazardous Safety or Security Conditions. (1)

A railroad carrier engaged in interstate or foreign

commerce, or an officer or employee of such a railroad

carrier, shall not discharge, demote, suspend,

reprimand, or in any other way discriminate against

an employee for(A) reporting, in good faith, a hazardous

safety or security condition;

(B) refusing to work when confronted by

a hazardous safety or security condition

related to the performance of the

employee's duties, if the conditions

described in paragraph (2) exist; or

safety-related equipment, track, or

structures, if the employee is responsible

for the inspection or repair of the

equipment, track, or structures, when

the employee believes that the

equipment, track, or structures are in a

hazardous safety or security condition, if

the conditions described in paragraph

(2) exist.

(2)

A refusal is protected under paragraph

(1)(B) and (C) if

(A) the refusal is made in good faith and

no reasonable alternative to the refusal

is available to the employee;

49a

(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; and

notified the railroad carrier of the

existence of the hazardous condition and

the intention not to perform further

work, or not to authorize the use of the

hazardous

equipment,

track,

structures, unless the condition is

corrected immediately or the equipment,

track, or structures are repaired

properly or replaced.

(3)

In this subsection, only paragraph (1)(A)

shall apply to security personnel employed by

a railroad carrier to protect individuals and

property transported by railroad.

(1) Prohibition. A railroad carrier or person

covered under this section may not deny, delay,

or interfere with the medical or first aid

treatment of an employee who is injured during

the course of employment. If transportation to

a hospital is requested by an employee who is

injured during the course of employment, the

railroad shall promptly arrange to have the

injured employee transported to the nearest

50a

hospital where the employee can receive safe

and appropriate medical care.

(2) Discipline. A railroad carrier or person

covered under this section may not

discipline, or threaten discipline to, an

employee for requesting medical or first aid

treatment, or for following orders or a

treatment plan of a treating physician,

except that a railroad carrier's refusal to

permit an employee to return to work

following medical treatment shall not be

considered a violation of this section if the

refusal is pursuant to Federal Railroad

Administration medical standards for

fitness of duty or, if there are no pertinent

Federal

Railroad

Administration

standards, a carrier's medical standards for

fitness for duty. For purposes of this

paragraph, the term "discipline" means to

bring charges against a person in a

disciplinary

proceeding,

suspend,

terminate, place on probation, or make note

of reprimand on an employee's record.

(d) Enforcement Action.

(1) In general. An employee who alleges

discharge,

discipline,

other

discrimination in violation of subsection (a),

(b), or (c) of this section, may seek relief in

accordance with the provisions of this

section, with any petition or other request

for relief under this section to be initiated

by filing a complaint with the Secretary of

Labor.

(2) Procedure.

51a

(A) In general. Any action under

paragraph (1) shall be governed under

the rules and procedures set forth in

section 42121(b), including:

(i) Burdens of proof. Any action

brought under (d)(1) 2 shall be

governed by the legal burdens of

proof set forth in section 42121(b).

(ii) Statute of limitations. An action

under paragraph (1) shall be

commenced not later than 180 days

after the date on which the alleged

violation of subsection (a), (b), or (c)

of this section occurs.

(iii) Civil actions to enforce. If a

person fails to comply with an order

issued by the Secretary of Labor

pursuant to the procedures in section

42121(b), the Secretary of Labor may

bring a civil action to enforce the

order in the district court of the

United States for the judicial district

in which the violation occurred, as set

forth in 42121.3

(B) Exception. Notification made under

section 42121(b)(1) shall be made to the

person named in the complaint and the

person's employer.

(3) De novo review. With respect to a

complaint under paragraph (1), if the

Secretary of Labor has not issued a final

decision within 210 days after the filing of

the complaint and if the delay is not due to

52a

the bad faith of the employee, the employee

may bring an original action at law or

equity for de novo review in the appropriate

district court of the United States, which

shall have jurisdiction over such an action

without regard to the amount in

controversy, and which action shall, at the

request of either party to such action, be

tried by the court with a jury.

(4) Appeals. Any person adversely affected

or aggrieved by an order issued pursuant to

the procedures in section 42121(b), may

obtain review of the order in the United

States court of appeals for the circuit in

which the violation, with respect to which

the order was issued, allegedly occurred or

the circuit in which the complainant resided

on the date of such violation. The petition

for review must be filed not later than 60

days after the date of the issuance of the

final order of the Secretary of Labor. The

review shall conform to chapter 7 of title 5.

The commencement of proceedings under

this paragraph shall not, unless ordered by

the court, operate as a stay of the order.

(e) Remedies.

(1) In general. An employee prevailing in

any action under subsection (d) shall be

entitled to all relief necessary to make the

employee whole.

(2) Damages. Relief in an action under

subsection (d) (including an action

described in subsection (d)(3)) shall include-

53a

(A) reinstatement with the same

seniority status that the employee would

have had, but for the discrimination;

(B) any backpay, with interest; and

compensation for any special damages

sustained as

a result of the

discrimination,

including

litigation

costs, expert witness fees, and

reasonable attorney fees.

(3) Possible relief. Relief in any action

under subsection (d) may include punitive

damages in an amount not to exceed

$250,000.

(f) Election of Remedies. An employee may not

seek protection under both this section and another

provision of law for the same allegedly unlawful act of

the railroad carrier.

(g) No Preemption. Nothing in this section

preempts or diminishes any other safeguards against

discrimination, demotion, discharge, suspension,

threats, harassment, reprimand, retaliation, or any

other manner of discrimination provided by Federal

or State law.

(h) Rights Retained by Employee. Nothing in this

section shall be deemed to diminish the rights,

privileges, or remedies of any employee under any

Federal or State law or under any collective

bargaining agreement. The rights and remedies in

this section may not be waived by any agreement,

policy, form, or condition of employment.

(i) Disclosure of Identity.

54a

(1) Except as provided in paragraph (2) of

this subsection, or with the written consent

of the employee, the Secretary of

Transportation or the Secretary of

Homeland Security may not disclose the

name of an employee of a railroad carrier

who has provided information about an

alleged violation of this part or, as

applicable

railroad

safety

security, chapter 51 or 57 of this title, or a

regulation prescribed or order issued under

any of those provisions.

(2) The Secretary of Transportation or the

Secretary of Homeland Security shall

disclose to the Attorney General the name

of an employee described in paragraph (1) if

the matter is referred to the Attorney

General for enforcement. The Secretary

making such disclosures shall provide

reasonable advance notice to the affected

employee if disclosure of that person's

identity or identifying information is to

occur.

(j) Process for Reporting Security Problems to

the Department of Homeland Security.

(1) Establishment of process. The Secretary

of Homeland Security shall establish

through regulations, after an opportunity

for notice and comment, a process by which

any person may report to the Secretary of

Homeland Security regarding railroad

security

problems,

deficiencies,

vulnerabilities.

55a

(2) Acknowledgment of receipt. If a report

submitted under paragraph (1) identifies

the person making the report, the Secretary

of Homeland Security shall respond

promptly to such person and acknowledge

receipt of the report.

(3) Steps to address problem. The Secretary

of Homeland Security shall review and

consider the information provided in any

report submitted under paragraph (1) and

shall take appropriate steps to address any

problems or deficiencies identified.

56a

49 USCS § 42121

§ 42121. Protection of employees providing air

safety information

(a)

Prohibited discrimination. A holder of a

certificate under section 44704 or 44705 of this title,

or a contractor, subcontractor, or supplier of such

holder, may not discharge an employee or otherwise

discriminate against an employee with respect to

compensation, terms, conditions, or privileges of

employment because the employee (or any person

acting pursuant to a request of the employee)—

(1)

provided, caused to be provided, or is

about to provide (with any knowledge of the

employer) or cause to be provided to the employer

or Federal Government information relating to

any violation or alleged violation of any order,

regulation, or standard of the Federal Aviation

Administration or any other provision of Federal

law relating to aviation safety under this subtitle

or any other law of the United States;

(2)

has filed, caused to be filed, or is about

to file (with any knowledge of the employer) or

cause to be filed a proceeding relating to any

violation or alleged violation of any order,

regulation, or standard of the Federal Aviation

Administration or any other provision of Federal

law relating to aviation safety under this subtitle

or any other law of the United States;

(3)

testified or is about to testify in such a

proceeding; or

57a

(4)

assisted or participated or is about to

assist or participate in such a proceeding.

(b) Department of Labor and Federal

Aviation Administration complaint procedure

(1)

Filing and notification. A person who

believes that he or she has been discharged or

otherwise discriminated against by any person

in violation of subsection (a) may, not later

than 90 days after the date on which such

violation occurs, file (or have any person file on

his or her behalf) a complaint with the

Secretary of Labor alleging such discharge or

discrimination. Upon receipt of such a

complaint, the Secretary of Labor shall notify,

in writing, the person named in the complaint

and the Administrator of the Federal Aviation

Administration of the filing of the complaint, of

the allegations contained in the complaint, of

the substance of evidence supporting the

complaint, and of the opportunities that will be

afforded to such person under paragraph (2).

(2)

Investigation; preliminary order.

(A) In general. Not later than 60 days

after the date of receipt of a complaint

filed under paragraph (1) and after

affording the person named in the

complaint an opportunity to submit to

the Secretary of Labor a written

response to the complaint and an

opportunity

meet

with

representative of the Secretary to

present statements from witnesses, the

58a

Secretary of Labor shall conduct an

investigation and determine whether

there is reasonable cause to believe that

the complaint has merit and notify, in

writing, the complainant and the person

alleged to have committed a violation of

subsection (a) of the Secretary's findings.

If the Secretary of Labor concludes that

there is a reasonable cause to believe

that a violation of subsection (a) has

occurred, the Secretary shall accompany

the Secretary's findings with a

preliminary order providing the relief

prescribed by paragraph (3)(B). Not later

than 30 days after the date of

notification of findings under this

paragraph, either the person alleged to

have committed the violation or the

complainant may file objections to the

findings or preliminary order, or both,

and request a hearing on the record. The

filing of such objections shall not operate

to stay any reinstatement remedy

contained in the preliminary order. Such

hearings

shall

conducted

expeditiously. If a hearing is not

requested in such 30-day period, the

preliminary order shall be deemed a

final order that is not subject to judicial

review.

(B)

Requirements

(i)

Required

showing

complainant. The Secretary of

Labor shall dismiss a complaint

59a

filed under this subsection and

shall

not

conduct

investigation otherwise required

under subparagraph (A) unless

the complainant makes a prima

facie showing that any behavior

described in paragraphs (1)

through (4) of subsection (a) was

a contributing factor in the

unfavorable personnel action

alleged in the complaint.

(ii)

Showing by employer.

Notwithstanding a finding by the

Secretary that the complainant

has made the showing required

under clause (i), no investigation

otherwise

required

under

subparagraph (A) shall be

conducted

the

employer

demonstrates, by clear and

convincing evidence, that the

employer would have taken the

same

unfavorable

personnel

action in the absence of that

behavior.

(iii)

Criteria for determination

by secretary. The Secretary may

determine that a violation of

subsection (a) has occurred only if

the complainant demonstrates

that any behavior described in

paragraphs (1) through (4) of

subsection (a) was a contributing

60a

factor in the unfavorable personnel

action alleged in the complaint.

(iv)

Prohibition. Relief may not

be ordered under subparagraph

(A) if the employer demonstrates

by clear and convincing evidence

that the employer would have

taken the same unfavorable

personnel action in the absence of

that behavior.

(3)

Final order.

(A) Deadline for issuance; settlement

agreements. Not later than 120 days

after the date of conclusion of a hearing

under paragraph (2), the Secretary of

Labor shall issue a final order providing

the relief prescribed by this paragraph

or denying the complaint. At any time

before issuance of a final order, a

proceeding under this subsection may be

terminated on the basis of a settlement

agreement entered into by the Secretary

of Labor, the complainant, and the

person alleged to have committed the

violation.

(B) Remedy. If, in response to a

complaint filed under paragraph (1), the

Secretary of Labor determines that a

violation of subsection (a) has occurred,

the Secretary of Labor shall order the

person who committed such violation

to—

61a

(i)

take affirmative action to

abate the violation;

(ii)

reinstate the complainant

to his or her former position

together with the compensation

(including back pay) and restore

the terms, conditions, and

privileges associated with his or

her employment; and

(iii)

provide

compensatory

damages to the complainant.

If such an order is issued under this paragraph,

the Secretary of Labor, at the request of the

complainant, shall assess against the person

against whom the order is issued a sum equal

to the aggregate amount of all costs and

expenses (including attorneys' and expert

witness fees) reasonably incurred, as

determined by the Secretary of Labor, by the

complainant for, or in connection with, the

bringing the complaint upon which the order

was issued.

Secretary of Labor finds that a

complaint under paragraph (1) is

frivolous or has been brought in bad

faith, the Secretary of Labor may award

to the prevailing employer a reasonable

attorney's fee not exceeding $1,000.

(4)

Review.

62a

(A) Appeal to court of appeals. Any

person adversely affected or aggrieved

by an order issued under paragraph (3)

may obtain review of the order in the

United States Court of Appeals for the

circuit in which the violation, with

respect to which the order was issued,

allegedly occurred or the circuit in which

the complainant resided on the date of

such violation. The petition for review

must be filed not later than 60 days after

the date of the issuance of the final order

of the Secretary of Labor. Review shall

conform to chapter 7 of title 5, United

States Code. [5 USCS § § 701 et seq.].

The commencement of proceedings

under this subparagraph shall not,

unless ordered by the court, operate as a

stay of the order.

(B) Limitation on collateral attack.

An order of the Secretary of Labor with

respect to which review could have been

obtained under subparagraph (A) shall

not be subject to judicial review in any

criminal or other civil proceeding.

(5)

Enforcement of order. Whenever any

person has failed to comply with an order

issued under paragraph (3), the Secretary of

Labor and the Administrator of the Federal

Aviation Administration shall consult with

each other to determine the most appropriate

action to be taken, in which—

63a

(A) the Secretary of Labor may file a

civil action in the United States district

court for the district in which the

violation was found to occur to enforce

such order, for which, in actions brought

under this paragraph, the district courts

shall have jurisdiction to grant all

appropriate relief including, injunctive

relief and compensatory damages; and

(B) the Administrator of the Federal

Aviation Administration may assess a

civil penalty pursuant to section 46301

[49 USCS § 46301].

(6)

Enforcement of order by parties.

(A) Commencement of action. A

person on whose behalf an order was

issued under paragraph (3) may

commence a civil action against the

person to whom such order was issued to

require compliance with such order. The

appropriate United States district court

shall have jurisdiction, without regard to

the amount in controversy or the

citizenship of the parties, to enforce such

order.

(B) Attorney fees. The court, in

issuing any final order under this

paragraph, may award costs of litigation

(including reasonable attorney and

expert witness fees) to any party

whenever the court determines such

award is appropriate.

64a

(c)

Mandamus. Any nondiscretionary duty

imposed by this section shall be enforceable in

a mandamus proceeding brought under section

1361 of title 28, United States Code.

Nonapplicability to Deliberate Violations.

Subsection (a) shall not apply with respect to

an employee of a holder of a certificate issued

under section 44704 or 44705 [49 USCS §

44704 or 44705], or a contractor or

subcontractor thereof, who, acting without

direction

from

such

certificate-holder,

contractor, or subcontractor (or such person's

agent), deliberately causes a violation of any

requirement relating to aviation safety under

this subtitle or any other law of the United

States relating to aviation safety under this

subtitle or any other law of the United States.

(d)

Contractor Defined. In this section, the term

"contractor" means—

(1)

a person that performs safety-sensitive

functions by contract for an air carrier or

commercial operator; or

(2)

a person that performs safety-sensitive

functions related to the design or

production of an aircraft, aircraft engine,

propeller, appliance, or component

thereof by contract for a holder of a

certificate issued under section 44704

[49 USCS § 44704].

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.