Ninth Circuit Clarifies Employer Burden in FRSA Retaliation Cases: Lessons from Parker v. BNSF Railway Co.
In a significant en banc decision, the Ninth Circuit affirmed the district court’s judgment in Parker v. BNSF Railway Co., holding that BNSF was not liable under the Federal Rail Safety Act (FRSA) for the termination of conductor Curtis Rookaird. Although Rookaird had engaged in protected activity by testing railcar air brakes—a contributing factor in his firing—the court concluded that BNSF established its affirmative defense by proving, with clear and convincing evidence, that it would have terminated him regardless of that protected activity. The decision provides meaningful guidance for employers on the evidentiary threshold needed to successfully assert an independent basis for discipline under statutes incorporating the AIR21 burden-shifting framework.
Underlying Facts
Curtis Rookaird worked for BNSF as a conductor. On the day in question he was part of a three-person crew assigned to move a cut of 42 railcars onto storage tracks. During the course of the move Rookaird conducted an air test on the cars, which took 20 to 40 minutes. Five hours into their shift the crew had still not completed moving the cars. At that point a supervisor instructed the crew to tie down the cars to the main line and report back to the depot. At the depot a BNSF superintendent instructed the crew to sign out for the day and go home. After some argument, Rookaird complied.
Following an investigation, BNSF fired Rookaird citing four reasons: (1) he failed to work efficiently; (2) he was dishonest when reporting his off-duty time; (3) he failed to provide a signed FRSA tie-up slip; and (4) he failed to comply with instructions when he was told to leave the property.
The District Court Litigation
Rookaird brought the subject lawsuit under the FRSA, alleging that BNSF fired him in retaliation for conducting a required air brake test, a protected activity under the FRSA. After a jury trial and initial appeal with remand, the District Court conducted a bench trial on two issues: (1) whether Rookaird could prove by a preponderance of the evidence that his 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 Rookaird absent the air test. The court held that both plaintiff and BNSF met their respective burdens and therefore entered summary judgment for BNSF.
The Ninth Circuit Decision
The Ninth Circuit, sitting en banc, affirmed the judgment for BNSF. The court agreed that the air test was protected activity and contributed, albeit modestly, to BNSF’s decision. The court reaffirmed the low threshold plaintiffs must meet to show protected activity was a “contributing factor,” which includes even a small or partial influence on the adverse action. This lenient standard reflects a strong policy choice by Congress to protect whistleblowers and those engaging in safety-related conduct.
However, meeting the “contributing factor” test does not end the inquiry. Under AIR21, the employer can prevail by demonstrating, with clear and convincing evidence, that it would have taken the same action even in the absence of the protected conduct. The Ninth Circuit emphasized the steep nature of this burden, describing it as requiring an “abiding conviction” in the factfinder that the employer’s rationale for termination was “highly probable” and not pretextual.
BNSF met that burden by presenting substantial evidence that it terminated Rookaird for unrelated, independently terminable misconduct. Specifically, the court credited findings that Rookaird falsified his timesheet, failed to sign it as required under federal regulations, and disobeyed multiple direct orders to leave the premises—acts that qualified as gross dishonesty and insubordination under BNSF’s disciplinary policy. The court cited other evidence that BNSF presented in support of its affirmative defense, including that an air test is a routine procedure performed every day; the air test accounted for a small fraction of the work delay; no supervisor specifically told Rookaird to cease the air test; and Rookaird’s two co-workers also participated in the air test but were not fired. The evidence collectively established clearly that the protected activity was not the decisive factor in Rookaird’s firing.
Key Takeaways
The Ninth Circuit’s opinion clarifies that the degree to which protected conduct influenced the decision is relevant in evaluating an employer’s affirmative defense. While the air test factored into Rookaird’s inefficiency, the court found that inefficiency alone would not have warranted termination, and the test accounted for only a fraction of the work delay. The absence of disciplinary action against other crewmembers who performed the same test further supported the credibility of BNSF’s asserted justifications.
This decision affirms that while whistleblower statutes like the FRSA offer broad protection, employers can prevail by meeting the high bar of clear and convincing evidence when independent grounds for termination exist. Employers seeking to rely on such defenses must document misconduct meticulously, apply discipline consistently, and be prepared to distinguish protected conduct from legitimate grounds for discharge.
