NOT FOR PUBLICATION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 worked 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 violated 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 APPEALS
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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 claims, 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 denying BNSF’s motion 

to bifurcate the FRSA and FELA claims. “Rule 42(b) merely allows, but does not 

require, a trial court to bifurcate cases ‘in furtherance of convenience or to avoid 

prejudice.’” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021

(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—the 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.3d 
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1076, 1082 (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 of 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 is 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 necessary. 

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. 

Even 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.”). 
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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 VicePresident, the Montana Division General Manager, a Director of Labor Relations, 

and the Director of Administration for the Montana Division, reviewed and 

approved Wooten’s dismissal. See Passantino v. Johnson & Johnson Consumer 

Prods., 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 Cir. 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. 

Multnomah 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., 191 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 illegal 
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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 reason that our circuit and others have 

emphasized that front pay is “temporary in nature.” Id. at 1347. 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 had a limited education 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 transportation industry. After being dismissed in violation of the FRSA, 

Wooten was faced with an essentially non-existent job market for comparable 

paying jobs.
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Indeed, BNSF’s own expert confirmed that the job market was highly 

unusual. The 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 BNSF); 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 ensured 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 over his 

expected working career. Moreover, given 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 will 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. 
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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 award. See Passantino, 212 F.3d at

513. 

AFFIRMED.