Fired BNSF Worker Gets $2.3 Million in Safety Retaliation Case

BNSF Railway Co. must pay a track inspector who a jury found was terminated in retaliation for opposing safety issues nearly $1.2 million in damages and more than $1.1 million in attorneys’ fees and costs.

Don Sanders’ damages award was reduced from the more than $9.4 million the jury awarded him, the US District Court for the District of Minnesota said. Of that amount, $8.6 million was for punitive damages, but the Federal Railroad Safety Act caps punitive damages at $250,000, the court said, noting that it had previously reduced that award.

Sanders can keep the $611,797 in back pay and benefits and $250,000 in emotional distress damages the jury awarded him, Judge Eric C. Tostrud said Monday. He’s also entitled to the $78,010 in front pay and future benefits the court awarded post-verdict, the judge said.

BNSF was wrong that the verdict wasn’t supported by sufficient evidence, Tostrud said. It was reasonable for the jury to find that Sanders engaged in good-faith protected activity under the FRSA when he reported track defects, entered slow orders, and removed a track from service. There was also evidence that Sanders implicitly refused to heed his supervisor’s reporting instructions and reported his safety concerns to human resources, Tostrud said.

The evidence supported an inference that Sanders’ protected actions at least contributed to the decision to fire him, the court said. It cited the “obviously hostile and adversarial relationship” that developed between him and his supervisor based on the latter’s belief that Sanders’s protected activity “negatively affected the supervisor’s performance metrics and potentially the company’s bottom line.”

BNSF didn’t show it would have fired Sanders anyway for alleged time theft, the court said. Other employees were accused of time theft as well but none of them engaged in safety-related protected activity or were disciplined as harshly as Sanders, it said.

The court also denied BNSF’s motion for a new trial based on alleged errors in the jury instructions and flawed evidentiary rulings.

The emotional distress damages likewise weren’t so high as to warrant a new trial, the court said.

Tostrud awarded Sanders almost all of the nearly $1.2 million in attorneys’ fees and $62,914 in litigation costs he sought. It reduced those amounts by $88,894 for fees incurred in conducting a mock trial and roughly $28,000 in costs associated with the mock trial, incorrect expert fees, and certain legal research.

Nichols Kaster LLP represented Sanders. Stinson Leonard Street LLP represented BNSF.

The case is Sanders v. BNSF Ry. Co., 2022 BL 432941, D. Minn., No. 0:17-cv-05106, 12/5/22.