NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZACHARY WOOTEN,

Plaintiff

- Appellee,

v. BNSF RAILWAY COMPANY, A Delaware Corporation, Defendant

- Appellant. No. 19

- 35431
D.C. No. 9:16

- cv - 00139

- DLC

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding Argued and Submitted May 6, 2020 Portland, Oregon Before: WATFORD and HURWITZ, Circuit Judges, and PREGERSON, * * District Judge. Zachary Wooten w orked as a conductor for BNSF Railway Company until September 2015 , when he was terminated after reporting a work

- related injury

. In this action , Wooten claims that the firing violat ed the Federal Railroad Safety Act

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. 

# FILED

JUN 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

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(“FRSA”) , Federal Employers’ Liability Act (“FELA”) , and Locomotive Inspection Act (“LIA”). After an eleven

- day trial, the jury returned a verdict in Wooten’s favor on the FRSA and FELA claim s, and in BNSF’s favor on the LIA claim. The district court entered judgment for Wooten awarding compensatory damages, lost wages, punitive damages, and front pay. This appeal followed.
1. The district court did not abuse its discretion by de nying BNSF ’s motion to bifurcate the FRSA and FELA claim s
. “Rule 42(b) merely allows, but does not require, a trial court to bifurcate cases ‘in furtherance of convenience or to avoid prejudice.’” Hang art e r v. Provident Life & Acc ident Ins. Co. , 373 F.3d 998, 10 21 (9th Cir. 2004) (emphasis omitted) (quoting Fed. R. Civ. P. 42(b)). Here, the district court determined that convenience and judicial economy weighed in favor of trying the claims together

— th e claims involved overlapping evidence and any potential for prejudice was reduced or eliminated by limiting instructions. Such a determination was not “beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel , 211 F.3d 1172, 1175 (9th Cir. 2000).
2. The district court did not abuse its discretion by declining to give BNSF’s proposed honest belief and business judgment instructions

. “Jury instructions must be supported by the evidence, fairly and adequately cover the issues presented, correctly state the law, and not be misleading.” Wilkerson v. Wheeler , 772 F.3d 834, 838 (9th Cir. 2014) (quoting Peralta v. Dillard , 744 F.3d3 19

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1076, 10 82 (9th Cir. 2014) (en banc) )

. The district court properly instructed the jury on Wooten’s burden of proof under the FRSA and on BNSF’s burden of proof on its affirmative defense. The district court also adequately instructed the jury on the definition o f a contributing factor : “A ‘contributing factor’ is any factor which, alone or in connection with other factors, affected the outcome of BNSF’s personnel decision

. . . . Wooten is not required to conclusively demonstrate BNSF’s retaliatory motive but he i s required to show that retaliation played at least some role in BNSF’s decision

. ” See Frost v. BNSF Ry. Co. , 914 F.3d 1189, 1195 (9th Cir. 2019) (approving such a definition of contributing factor). Because the district court’s instructions correctly stated the law on the FRSA claim , BNSF’s proposed honest belief and business judgment instructions were not nec essary. 3. The district court did not abuse its discretion by declining to give BNSF’s proposed decision

- maker knowledge instruction on the FRSA claim and a Kolstad instruction on punitive damages

. See Kolstad v. Am. Dental Ass’n , 527 U.S. 526 (1999)

. BNSF did not present any evidence , argue before the jury , or contend on appeal that its decision

- makers were unaware of Wooten’s protected activity.
E ven if decision

- maker knowledge is required under the FRSA, any error was harmless

— there was ample evidence that BNSF’s decision

- makers were aware of Wooten’s protected activity

. See Wilkerson , 772 F.3d at 838 (“[I] f any error relating to the jury instructions was harmless, we do not reverse. ”).4 19

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Similarly, we need not decide whether a Kolstad instruction on punitive damages is appropriate in a FRSA action. See Kolstad , 527 U.S. at 545

. Sufficiently senior

- level officials at multiple layers, including the Regional Vice

President, the Montana Division General Manager, a Direct or of Labor Relations, and the Director of Administration for the Montana Division, reviewed and approved Wooten’s dismissal. See Passantino v. Johnson & Johnson Consumer Prod s ., Inc. , 212 F.3d 493, 516

- 17 (9th Cir. 2000)

. 4. We need not decide whether the district court erred in admitting evidence of comparators. Even if the district court erred in admitting some of the evidence, the error did not result in any prejudice. See EEOC v. Pape Lift, Inc. , 115 F.3d 676, 680 (9th C ir. 1997)

. 5. The district court did not abuse its discretion in awarding Wooten front pay under the FRSA. We review the front pay award for an abuse of discretion and the factual findings related to the front pay award for clear error. Traxler v. Multn omah Cty. , 596 F.3d 1007, 1014 n.4 (9th Cir. 2010)

. “When we conduct clear error review, we must not reverse as long as the district court’s findings are plausible in light of the record viewed in its entirety. ” Gotthardt v. Nat’l R.R. Passenger Corp. , 1 91 F.3d 1148, 1155 (9th Cir. 1999) (cleaned up)

. “‘[F] ront pay’ in lieu of reinstatement . . . [returns] the aggrieved party to the economic situation he would have enjoyed but for the defendant’s illegal5 19

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conduct.” Cassino v. Reichhold Chems. , Inc. , 817 F.2d 1338, 1346 (9th Cir. 1987). “[F] ront pay is an award of future lost earnings to make a victim of discrimination whole.” Id. Of course, “the plaintiff’s duty to mitigate must serve as a control on front pay damage awards,” and it is for that rea son that our circuit and others have emphasized that front pay is “temporary in nature.” Id. at 134 7. Notwithstanding the temporary nature of front pay, we have upheld front pay awards for extended periods where the facts have justified such an award to make a plaintiff whole. See, e.g. , Gotthardt , 191 F.3d at 1157 (affirming a front pay award covering approximately eleven years ) ; see also Padilla v. Metro

- N. Commuter R.R. , 92 F.3d
117 , 126 (2d Cir. 1996) (affirming a front pay award covering more than twenty
years )

. Upon careful review , we conclude that the front pay award , although for an extended period, does not constitute an abuse of discretion based on the highly unusual, fact specific record before the court. Wooten ha d a limited e ducation and

was from a small railroad town

. He came from a railroad family

— his grandfather retired from the railroad

— and worked at one of the best paying jobs in the area. Notably, Wooten acquired at BNSF a specific set of skills that were related only to the t ransportation industry

. After being dismissed in violation of the FRSA,
Wooten was faced with an essentially non

- existent job market for comparable paying jobs.6 19

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I ndeed, BNSF’s own expert confirm ed that the job market was highly unusual. T he company’s vocational expert testified that Wooten had a highly specialized set of skills derived from his work at BNSF; that the most he could make working at another railroad would be $60 ,000 (compared to the approximately $100 ,000 he had been making at B NSF); that it was unclear whether another railroad would even be willing to hire him; and that his insurance job was probably the best

- paying job he could otherwise hope to get. What’s more, it appears that the seniority Wooten had acquired at BNSF ensur ed that he would actually get put on jobs with that employer , while his lack of seniority at any other railroad might have rendered him unable to earn a full

- time salary. BNSF did not show that Wooten would be able to find a comparable job at any point ov er his expected working career. Moreover , g iven the salary Wooten earned at BNSF and the benefits associated with the seniority that he enjoyed, Wooten would not have had any economically rational reason to ever leave BNSF, making it far from speculative to find that he would have stayed at the company until his retirement. In the vast majority of cases, a plaintiff wil l be able to find a comparable job within a few years, and for that reason, only a few years of front pay will be sufficient to bridge the gap in earnings . But this is not a typical situation. The district court’s findings supporting the front pay award were not clearly erroneous, and the award was not an abuse of discretion.7 19

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6. The district court did not abuse its discretion in concluding that the jury’s emotional distress award was supported by the evidence. “ Generally, a jury ’ s award of damages is entitled to great deference, and should be upheld unless it is

‘ clearly not supported by the evidence ’ or ‘ only based on speculation or guesswork. ’” In re First All. Mortg. Co. , 471 F.3d 977, 1001 (9th Cir. 2006) (quoting L.A. Mem’l Coliseum Comm ’ n v. Nat’l Football League , 791 F.2d 1356,
1360 (9th Cir. 1986) ). The jury’s award was supported by Wooten’s testimony regarding the emotional impact he experienced after dismissal . Objective evidence is not required to support an emotional distress awar d. See Passantino , 212 F.3d at 513

. AFFIRMED.