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Koziara v. BNSF Railway Co.

United States District Court, W.D. Wisconsin

February 16, 2016



JAMES D. PETERSON District Judge

At trial, plaintiff Michael Koziara succeeded on his claim that defendant BNSF Railway Company retaliated against him for reporting a workplace injury, in violation of the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109. A jury awarded Koziara $425, 724.64, which included lost wages, damages for pain and suffering, and punitive damages. The court entered judgment on March 11, 2015.

Two post-trial motions are before the court. First, BNSF moves for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50, or, in the alternative, for a new trial, pursuant to Rule 59. Dkt. 212. Second, Koziara moves for equitable relief, asking the court to order BNSF to pay certain taxes to the Railroad Retirement Board (RRB) and to support Koziara’s claim for service credit. Dkt. 213.

This case was well-tried by both sides, and BNSF put on a strong defense. The court’s task here is not to second-guess the jury, but to determine whether the verdict was supported by the evidence. The court must view the evidence in a light favorable to the verdict, and from this perspective, there is no basis to overturn any aspect of it. The court will therefore deny BNSF’s motions for judgment as a matter of law and for a new trial. The court will also deny Koziara’s request for equitable relief because the issues that he raises are appropriately addressed to the RRB, not to this court.


The court recounted the material facts of the case in its summary judgment opinion. Dkt. 73. To briefly summarize:

Koziara began working for BNSF more than 30 years ago, in the company’s Maintenance of Way Department. On September 9, 2010, Koziara was supervising a work crew assigned to remove and reinstall crossing planks in East Winona, Wisconsin. Koziara was injured when a crossing plank struck him in the left shin. Although Koziara did not think that he was seriously injured at the time, he later learned that he had fractured his tibia. Koziara called two of his co-workers to explain that he would have to miss work because of an injury. But he initially told them that the injury had occurred over the weekend, at home. Later, Koziara called these co-workers again and confessed that the injury had actually occurred at work.

Koziara also called his supervisor, Roadmaster Michael Veitz, to report the accident and injury. Koziara completed an injury report, which BNSF accepted, and Veitz investigated the accident. Veitz concluded that Koziara had moved into the work zone while a front-end loader was prying up a crossing plank, contrary to BNSF’s safety rules. But Veitz’s investigation also revealed another possible source of Koziara’s injury: an event that occurred about a week before the accident. Employees reported seeing Koziara jumping off of a trailer and hopping around afterward as if injured. Worse, employees reported that when this possible injury occurred, Koziara had been taking used railroad ties to give to a friend.

BNSF began two separate disciplinary proceedings against Koziara. The first was to address whether he had violated BNSF’s safety policies during the September 9 incident. The second was to address whether Koziara had stolen company property by taking ties without permission. BNSF eventually suspended Koziara for violating workplace safety rules and later terminated him for stealing company property.

Koziara filed suit in this court on December 4, 2013, alleging that both of BNSF’s disciplinary actions against him were in retaliation for reporting a workplace injury. At summary judgment, the court concluded that there was no dispute that Koziara had satisfied three of the four elements of his claim under FRSA. But there were genuine disputes of fact as to one element-whether Koziara reported his injury in good faith-and as to BNSF’s affirmative defense to liability-whether the company would have taken the same adverse actions against Koziara despite his injury report. The case proceeded to a trial on these two issues, bifurcated into a liability phase and a damages phase. A jury ultimately found in Koziara’s favor and awarded him $175, 725.64 in lost wages, $125, 000 for emotional pain and suffering, and $125, 000 in punitive damages. Dkt. 181 and Dkt. 183.


Two post-trial motions are before the court. First, BNSF has raised a series of challenges to the jury’s verdict, essentially contending that it is entitled to judgment as a matter of law on every aspect of this case, or, in the alternative, to a new trial. Second, Koziara has moved for equitable relief in the form of an order requiring BNSF to help him obtain service credit from the RRB.

A. BNSF’s motion for judgment as a matter of law or for a new trial

At trial, BNSF moved for judgment as a matter of law on three issues: (1) whether a jury could find by a preponderance of the evidence that Koziara had proven every element of his claim under FRSA; (2) whether a jury would have to find by clear and convincing evidence that BNSF had proven its statutory affirmative defense; and (3) whether Koziara could recover lost wages, damages for emotional distress, and punitive damages. BNSF has now renewed each of these challenges in one post-trial motion under Rule 50(b). Dkt. 212. BNSF has also moved for a new trial under Rule 59(a)-(d), and to amend the judgment under Rule 59(e). Id.

“In deciding a Rule 50 motion, the court construes the evidence strictly in favor of the party who prevailed before the jury and examines the evidence only to determine whether the jury’s verdict could reasonably be based on that evidence.” Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012). The court reviews the entire record but does not reweigh the evidence, make credibility determinations, or consider evidence favorable to the moving party that the jury was not required to believe. Id. Thus, BNSF is entitled to judgment as a matter of law only if the jury did not have a “legally sufficient evidentiary basis” to find in Koziara’s favor. Id.; Fed.R.Civ.P. 50(a)(1).

A new trial is appropriate under Rule 59 “if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party.” Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). Likewise, a motion to amend the judgment under Rule 59(e) “will be successful only where the movant clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (internal citations and quotation marks omitted). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal citations and quotation marks omitted).

After reviewing BNSF’s motion with these standards in mind, the court will not set aside the jury’s verdict with regard to liability or with regard to damages. Nor is the court persuaded that a new trial would be appropriate in this case.

1. Elements of Koziara’s claim under FRSA

To prevail on a retaliation claim under FRSA, Koziara needed to show by a preponderance of the evidence that: (1) he engaged in protected activity; (2) BNSF knew that he engaged in the protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action. 49 U.S.C. § 20109(d)(2); Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009). At summary judgment, there was a genuine dispute of fact as to whether Koziara reported a workplace injury in good faith-part of the “protected activity” that the first element requires. But the court concluded that there was no genuine dispute concerning the second, third, and fourth elements. BNSF now challenges whether Koziara adduced sufficient evidence of good faith and whether the court erred by not instructing the jury on the fourth element.

a. Good faith

BNSF contends that no rational jury could have found for Koziara on the issue of whether he reported his workplace injury in good faith. Dkt. 215, at 3. FRSA protects only an employee’s “good faith act done . . . to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury.” 49 U.S.C. § 20109(a)(4) (emphasis added). The parties agree that reporting an injury in good faith requires both objective and subjective reasonableness. Dkt. 215, at 4 and Dkt. 217, at 30. Thus, when Koziara reported his injury on September 14, 2010, he must have actually believed that his injury was work-related, and that belief must have been objectively reasonable.

According to BNSF, Koziara’s “shifting stories” about the cause of his injury precluded the jury from finding that he reported his injury in good faith, subjectively or objectively. BNSF cross-examined Koziara at length about the discrepancies in his account of the injury, but he had an explanation for each of them. For example, Koziara explained that he did not report the accident on the day that it occurred because he did not think that his injury required a trip to the hospital. Tr. 2a, at 26:23-27:2.[1] With regard to the story that he told his co-workers about being injured at home, Koziara testified that he made up that story after learning from a doctor that he had fractured his tibia. Tr. 2a, at 34:6-10. At that point, more than 72 hours had passed since the injury, and so Koziara was afraid that if he reported the true cause of the injury, then ...

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