Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`November 10, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`BRANDON FRESQUEZ,
`
` Plaintiff - Appellee,
`
`v.
`
`BNSF RAILWAY CO.,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 21-1118
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:17-CV-00844-WJM-SKC)
`_________________________________
`
`Bryan P. Neal, Holland & Knight LLP, Dallas, Texas (Keith M. Goman, Hall & Evans,
`LLC, Denver, Colorado, with him on the briefs), appearing for Appellant.
`
`Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota (Nicholas D. Thompson,
`Casey Jones Law, Appleton, Wisconsin, Jonathan L. Stone, Moody Law Firm,
`Portsmouth, Virginia, Eleanor E. Frisch, Apollo Law LLC, Minneapolis, Minnesota, and
`Colin R. Reeves, Apollo Law LLC, Brooklyn, New York, with him on the brief),
`appearing for Appellee.
`
`_________________________________
`
`Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.
`_________________________________
`
`BRISCOE, Circuit Judge.
`_________________________________
`
`
`
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`

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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 2
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`Table of Contents
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`Introduction ......................................................................................................................... 4 
`
`I. 
`
`Factual background ................................................................................................. 5 
`
`II. 
`
`Procedural background .......................................................................................... 17 
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`III. 
`
`Analysis................................................................................................................... 21 
`
`A.  Is BNSF entitled to judgment as a matter of law on the merits of Fresquez’s claims
`because he failed to prove that he engaged in any actionable protected activity
`and/or because BNSF proved its same-decision defense? ..................................... 21 
`1.  Standard of review ............................................................................................ 22 
`2.  The evidentiary burdens in an FRSA case ........................................................ 22 
`3.  Did Fresquez prove he engaged in actionable protected activity? .................. 24 
`4.  BNSF’s remaining arguments ........................................................................... 35 
`5.  BNSF’s same-decision defense ......................................................................... 44 
`
`B.  Is BNSF entitled to a new trial due to the district court’s admission of character
`evidence and/or other allegedly prejudicial evidence? .......................................... 51 
`1)  Standard of review ............................................................................................ 52 
`2)  Procedural history of the issue ......................................................................... 53 
`3)  Analysis ............................................................................................................. 56 
`
`C.  Did the district court err in denying BNSF’s combined request for a new trial on
`the issue of compensatory damages or, in the alternative, a remittitur of
`compensatory damages? ........................................................................................ 59 
`1)  Standard of review ............................................................................................ 59 
`2)  Procedural history of the issue ......................................................................... 60 
`3)  Analysis ............................................................................................................. 65 
`
`D.  Is BNSF entitled to judgment as a matter of law as to punitive damages? ............ 67 
`1)  Standard of review and applicable law ............................................................ 67 
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 3
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`2)  Procedural history of the issue ......................................................................... 68 
`3)  Analysis ............................................................................................................. 70 
`
`E.  Did the district court err in awarding Fresquez ten years’ worth of front pay? ... 72 
`1)  Standard of review ............................................................................................ 72 
`2)  Procedural history of the issue ......................................................................... 73 
`3)  Failure to distinguish between front pay and damages for loss of future
`earnings capacity .............................................................................................. 76 
`4)  The amount of the front pay award ................................................................... 79 
`
`IV. 
`
`Affirmance of judgment of district court ................................................................ 84 
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`3
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 4
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`Introduction
`
`Plaintiff Brandon Fresquez filed this action against his former employer,
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`defendant BNSF Railway Company (BNSF), claiming that BNSF violated the Federal
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`Railroad Safety Act (FRSA) by terminating his employment in retaliation for him
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`engaging in certain activities that are expressly protected under the FRSA. The case
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`proceeded to a jury trial. The jury found in favor of Fresquez on his claim of retaliation
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`under the FRSA, and it awarded him $800,000 in compensatory damages and $250,000
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`in punitive damages. Following the trial, Fresquez moved for an award of back and front
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`pay. The district court granted that motion in part and awarded Fresquez a total of
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`$696,173 in back and front pay, bringing the total judgment to $1,746,173, plus interest
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`from the date of entry of judgment.
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`BNSF now appeals. BNSF argues that it is entitled to judgment as a matter of law
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`on the merits of Fresquez’s claims, and, alternatively, judgment as a matter of law on the
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`issue of punitive damages. BNSF further argues that it is entitled to a new trial on the
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`merits of Fresquez’s claims based on the district court’s admission of character and other
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`prejudicial evidence. BNSF also argues that it is entitled to a new trial on the issue of
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`compensatory damages. Lastly, BNSF argues that the district court abused its discretion
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`by awarding Fresquez ten years’ worth of front pay.
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`Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject BNSF’s arguments
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`and affirm the district court’s judgment.
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 5
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`I. Factual background1
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`
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`BNSF is a Texas-based freight transportation company that operates an extensive
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`interstate railroad network. BNSF is designated as a Class I freight railroad by the
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`federal government.
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`Fresquez, a Colorado resident, began working for BNSF’s Maintenance of Way
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`Department in November 2005. Between 2006 and May 2016, Fresquez worked
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`primarily as a track inspector. The track inspector position requires extensive training,
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`including a week-long community college class, and regular certification testing.
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`A track inspector’s job is to identify and report track defects, which are deviations
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`from BNSF’s or the Federal Railroad Administration’s (FRA) track safety standards.
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`FRA regulations set forth a specific schedule for track inspections. 49 C.F.R.
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`§ 213.233(c). Fresquez monitored and inspected the railroad tracks in his assigned
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`geographic area, which covered in part the Denver metropolitan area, to make sure they
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`complied with BNSF and FRA standards.
`
`
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`When a track inspector discovers a track defect, he or she must take one of three
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`remedial actions, depending on the severity and classification of the defect. Some types
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`of track defects require the inspector to take the track out of service immediately, which
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`means that the track cannot be used until the defect is repaired. Other types of defects, in
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`
`
`1 Because the jury found in favor of Fresquez on his FRSA claim, we recount the
`facts that were presented to the jury in the light most favorable to Fresquez. See Tudor v.
`Se. Okla. Univ., 13 F.4th 1019, 1025 n.1 (10th Cir. 2021).
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 6
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`contrast, require only that the maximum speed limit be lowered on the section of track
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`containing the defect until such time as the defect is repaired. This type of remedial
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`action applies, in part, to what are known as class-specific defects. A section of track
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`containing a class-specific defect may also be “reclassified to the next lowest class of
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`track for which it does meet all of the [regulatory] requirements” and, if so, will
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`permanently operate at a lower range of speeds unless and until the identified defect is
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`repaired and the section of track is reclassified into a higher class. See 49 C.F.R.
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`§ 213.9(b). Lastly, defects that are characterized as non-class specific do not require any
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`immediate remedial action, but must be repaired within thirty days. If a non-class
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`specific defect is not repaired within thirty days, the section of track on which it is
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`located must be taken out of service until the defect is repaired.
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`
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`During the time that Fresquez worked as a track inspector for BNSF, track defects
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`were reported by inputting information about the defect into an electronic track
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`inspection database that BNSF maintained and referred to as the Track Inspection
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`Management System (TIMS). More specifically, a track inspector would enter an
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`identified defect into the TIMS system by entering the milepost location of the defect,
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`selecting the type of defect involved, and then entering information about the type of
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`repair that was required. Track inspectors and their supervisors accessed and worked
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`with information in the TIMS system on a daily basis.
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`
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`Fresquez, in his role as a track inspector, reported directly to a roadmaster named
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`Michael Paz. Paz in turn reported directly to a division engineer named Mark Carpenter.
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`
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`BNSF used engineering scorecards to rank its management employees, including
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`division engineers and roadmasters. One part of the engineering scorecards focused on
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`velocity, or the speed of trains across a manager’s territory. Speed restrictions that were
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`imposed on sections of track, such as those imposed due to the existence of track defects,
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`could negatively affect this part of an engineering scorecard and, in turn, negatively
`
`impact a manager’s ranking. Carpenter viewed the engineering scorecards as important
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`and emphasized them to the managers who worked under him.
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`
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`It is essentially undisputed that Carpenter interpreted the FRA’s regulations
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`regarding non-class specific defects in a manner that was contrary to the FRA’s published
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`compliance manual. Specifically, Carpenter took the position that tracks containing non-
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`class specific defects could remain in service even if the defects had not been repaired
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`within thirty days after identification. Notably, however, Carpenter never asked BNSF’s
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`in-house attorneys to assist him in interpreting the regulation, nor did Carpenter ever
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`contact the FRA to verify if his interpretation was correct. Nevertheless, Carpenter
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`conveyed his interpretation to all of the management employees who worked for him,
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`including Paz.
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`
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`Beginning in 2014 or 2015, Fresquez became suspicious that Carpenter and Paz
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`were treating non-class specific defects in a manner different than required by the FRA
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`regulations. Specifically, Fresquez began noticing isolated incidents of track defects that
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`he knew had been identified in the field but did not appear in the TIMS system. This
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 8
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`caused Fresquez to suspect that management employees such as Carpenter and Paz were
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`removing identified track defects from the TIMS system.
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`
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`Around this same time, Fresquez identified a defect on a petroleum track in
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`Denver. Fresquez called Paz and asked him to come out to the location of the defect.
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`Paz agreed with Fresquez that a defect existed and told Fresquez that he had done a good
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`job. Paz in turn notified the employee in charge of the track that the defect needed to be
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`repaired. Shortly thereafter, however, Paz was called to Carpenter’s office. When Paz
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`returned to the site of the defect, he told Fresquez, “I’m here to tell you from Mark
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`Carpenter . . . if that defect is in the [TIMS] system tonight, you will be wrote [sic] up for
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`insubordination.” Aplt. App., Vol. VI at 1434.
`
`
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`Following that incident, Carpenter decided one day to accompany Fresquez on his
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`route in order to inspect the defects that Fresquez had identified. When Fresquez and
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`Carpenter arrived at one of the first defects, Carpenter belittled Fresquez and told him to
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`remove the defect from the TIMS system because Fresquez had marked it 200 feet short
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`of the actual location. Carpenter subsequently told Fresquez to remove “a couple other
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`defects” from the TIMS system. Id. at 1436. Although doing so violated federal law,
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`Fresquez did as Carpenter directed because he was scared of losing his job and the
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`medical benefits that came with the job. The experience, however, “started a war within”
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`Fresquez because he believed he was violating federal law by removing the defects from
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`the TIMS system. Id. at 1438.
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`
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`On April 29, 2015, Fresquez was at work and notified Ryan Akers, another
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`roadmaster who worked under Carpenter, that he was going to take Track 533 out of
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`service because it contained a defect. Track 533 was a track that received regular daily
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`traffic because it was used to transport grain and automobiles. Akers responded by
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`telling Fresquez that if he wanted to continue receiving a paycheck, he would inspect the
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`track again and report that it showed no defects. Fresquez said to Akers, “You know
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`what you are telling me to do. You are telling me to falsify reports.” Id. at 1440. Akers
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`responded by kicking Fresquez out of his office. Fresquez contacted his union
`
`representative and informed her of the incident. According to Fresquez, he later checked
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`the TIMS system and determined that the defect had been removed from the system.
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`Upon further investigation, Fresquez learned that Akers had instructed BNSF’s
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`information technology department to remove the defect, as well as approximately
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`thirty-four other defects, from the TIMS system.
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`
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`Shortly thereafter, Fresquez confronted Carpenter at a group safety briefing about
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`the removal of defects from the TIMS system. Carpenter responded by moving Fresquez
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`from the room where the safety briefing was occurring, taking him to a separate office,
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`and belittling him. According to Fresquez, Carpenter told him that it was not his job to
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`take tracks out of service or to find defects, and that his only job was to write reports.
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`Carpenter also allegedly told Fresquez that he was a bad inspector and that Carpenter
`
`would either fire or disqualify him if he continued to find track defects. Fresquez asked
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`for union representation several times during the incident with Carpenter, but Carpenter
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 10
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`allegedly told Fresquez to never call the union again. Throughout the incident, Carpenter
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`repeatedly told Fresquez to not “report defects that are going to stop traffic, that are going
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`to take a lot of hours to fix.” Id. at 1461.
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`
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`Following this incident with Carpenter, Fresquez transferred to a foreman flagman
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`position, which was the first vacant position at BNSF that he could transfer to based on
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`his seniority.2 The foreman flagman position did not require Fresquez to report defects.
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`No discipline issue arose while Fresquez worked in this position. In February 2016,
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`however, another BNSF employee with greater seniority took the foreman flagman job
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`from Fresquez. This meant that Fresquez had to return to the track inspector position in
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`Denver that he previously held. Because Fresquez was certified as a track inspector, he
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`was not, according to BNSF’s own policies, eligible to work in a lower position such as
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`laborer or trackman.
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`
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`In March 2016, Fresquez found a defect in a track located by the stockyards in
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`Denver. Fresquez notified Paz of the defect and Paz immediately traveled to the site of
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`the defect. Although Fresquez had previously placed an order limiting the speed on the
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`track to no more than ten miles per hour, Paz removed that order and placed the track
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`back at the maximum authorized speed. According to Fresquez, Paz’s action violated
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`federal regulations.
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`
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`2 Every two weeks BNSF issued a list of vacant jobs and BNSF employees could
`“put in” for those positions. Aplt. App., Vol. VI at 1468. The applicant with the most
`seniority received the position.
`
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`
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`After this incident, Fresquez transferred again to an open foreman flagman
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`position. Fresquez, however, was only able to work in that foreman flagman position
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`until May 2, 2016, when another BNSF employee with seniority displaced him. At that
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`point, Fresquez had to again return to the track inspector position.
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`
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`On May 2, 2016, which was Fresquez’s first day back working as a track
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`inspector, Paz told him “not to do anything so [Paz] could get his house in order.” Id. at
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`1479. Fresquez responded to Paz’s statement by driving around the rest of the day and
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`not inspecting any tracks.
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`
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`On May 3, 2016, Fresquez began inspecting tracks and found a severe defect.
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`Fresquez texted Paz and informed him of the defect. According to Fresquez, this severe
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`defect had existed for several months and should have been, but was not, repaired in
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`March or April of 2016. Fresquez determined that Paz had entered information into the
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`TIMS system falsely indicating that this severe defect had been repaired. Fresquez
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`confronted Paz about this information in the TIMS system and said “I know what
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`happened to my defects.” Id. at 1482. Paz allegedly laughed at Fresquez in response.
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`
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`On May 4, 2016, Fresquez texted Paz and told him that he had taken a section of
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`track out of service due to the existence of a defect. The section of track was located in
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`downtown Denver and was considered an important track because it was situated near an
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`amusement park and an arena. Paz texted Fresquez back and said “that pulling tracks
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`[out of service] doesn’t make friends.” Id. at1484.
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`
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`On May 5, 2016, Fresquez discovered a track defect, specifically a broken tie
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`located on a curved section of track, that he had previously identified in February 2016.
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`When he first identified this defect in February 2016, Fresquez wanted to place a ten-
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`mile-per-hour limit on the section of track containing the defect, but Paz decided to treat
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`it as a non-class specific defect, which meant that trains could continue to run at regular
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`speed over the track for a period of thirty days. When Fresquez rediscovered the defect
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`on May 5, 2016, he concluded that the track needed to be taken out of service until it was
`
`repaired. Paz, however, wanted Fresquez to reclassify the defect as a class-specific
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`defect so that trains could continue to run over the track containing the defect. Fresquez
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`told Paz he was going to “call [his] friends in high places,” meaning he was going to call
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`the FRA. Id. at 1489.
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`
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`After concluding the conversation with Paz, Fresquez called an FRA agent he
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`knew and described what had occurred regarding the defect. The FRA agent confirmed
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`that Fresquez was correct regarding how the defect should be handled and that Fresquez
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`could not reclassify the defect as Paz wanted him to do. After talking to the FRA agent,
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`Fresquez called Paz and they negotiated to fix the defect at issue. During the
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`conversation, Fresquez said to Paz, “Admit that you are falsifying reports, the defects.”
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`Id. at 1491. Paz allegedly admitted to doing so, and then stated, “We’ll work on it,” and
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`“We have to find a happy meeting place.” Id. Paz also stated that he had Carpenter on
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`his side and that “they don’t lose.” Id. at 1492. Fresquez interpreted this statement to
`
`mean that Carpenter and Paz were going to continue the practice of handling defects in a
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 13
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`manner inconsistent with federal regulations. Lastly, Paz told Fresquez during the call,
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`“I’ll . . . walk behind you and find 8 missing [rail] clips and fire you.” Id. Fresquez
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`understood this to mean that Paz would follow him while on duty, wait until he observed
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`Fresquez violating a rule, and then fire him.
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`
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`On May 5, 2016, Fresquez discovered another defect that he had identified in
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`February 2016, but had not been repaired and had been removed from the TIMS system.
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`Under the FRA’s regulations, this defect required Fresquez to reduce the maximum speed
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`on the section of track containing the defect. Fresquez called the dispatcher and told him
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`what action he was taking with regard to the track. Approximately twenty minutes after
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`placing the slow order on the track, Fresquez received a call from Paz directing him to
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`meet at the site of the defect. Fresquez and Paz then met at the site of the defect. Also
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`present on-site was Jay Herzog, a BNSF foreman, and Herzog’s repair crew.
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`
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`Paz stated that he did not see the defect that Fresquez had identified. Fresquez
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`stated in response that the defect was not the type that could be observed and instead had
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`to be measured. Paz said to Fresquez, “I do not have to prove . . . the defect’s not there.
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`It’s your job to prove the defect is there.” Id., Vol. X at 2630–31. According to
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`Fresquez, Paz then twice stated to him, “Do you want to string-line the defect?”3 Id.,
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`Vol. VI at 1540. Fresquez interpreted Paz’s statements as questions rather than
`
`
`
`3 A string line is a hand tool commonly used in construction to help the user create
`a straight line between two reference points.
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 14
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`directions. Fresquez also believed that Paz was setting him up and intended to falsify
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`information regarding the existence of the defect. Based upon that belief, and because he
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`was concerned about being fined by the FRA or held responsible by Carpenter if the
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`defect resulted in an accident, Fresquez did not measure the defect and instead got into
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`his truck, drove approximately 200 feet away, and parked next to Herzog’s crew, who
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`were preparing to fix some other track defects.
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`Paz called Fresquez on his radio and again asked him if he wanted to string-line
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`the defect. Fresquez said to Paz, “I don’t see the point. You have already made your
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`decision.” Id. at 1509. According to Fresquez, this statement meant that he believed that
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`Paz had already decided to falsify the report regarding the defect. Paz responded by
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`saying, “I take that as a no.” Id. Fresquez replied, “I didn’t say no.” Id.
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`
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`Fresquez returned to the site of the defect and observed Paz and Herzog measuring
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`the defect with a string line. Fresquez asked if the two men needed help. Id. Paz said
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`“no, we’ll have time to argue the facts later.” Id. at 1510. Fresquez then asked Herzog if
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`the defect was present and Herzog said yes. Id. at 1511.
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`
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`Following this incident, information was entered into the TIMS system falsely
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`indicating that the defect identified by Fresquez and verified by Paz and Herzog’s
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`measurements had been repaired that same day (May 5, 2016). It is undisputed that
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`neither Fresquez nor Herzog entered this information and, in fact, lacked the ability to do
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`so. Carpenter later conceded that the only person who could have entered this
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`information was Paz. Repairing the defect would have required shutting down up to
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`three separate tracks in a high-traffic location.
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`
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`Paz immediately reported the string-line incident to Carpenter, who instructed Paz
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`to prepare a written notice of investigation. Paz did so and then messaged Fresquez and
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`instructed him to report to Paz’s office. When Fresquez arrived at Paz’s office, Paz
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`handed him the notice of investigation. The notice of investigation effectively alleged
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`that Fresquez had violated BNSF’s progressive disciplinary policy and was subject to
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`either discipline or dismissal.
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`
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`BNSF’s progressive disciplinary policy was called the Policy for Employee
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`Performance and Accountability (PEPA). PEPA applied to all of BNSF’s scheduled (i.e.,
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`union) employees, including track inspectors such as Fresquez. PEPA listed three
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`categories of rules violations: standard, serious, and stand-alone dismissible. The charge
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`alleged against Fresquez in the notice of investigation, insubordination, was classified
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`under PEPA as a stand-alone dismissible offense.
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`
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`Under the collective bargaining agreement between Fresquez’s union and BNSF
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`that was in place at the time, any employee who had worked for more than sixty days for
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`BNSF could not be disciplined or dismissed from employment until they were afforded
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`an investigation hearing. Investigation hearings were conducted by a member of BNSF’s
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`management. The charged employee was not permitted to be represented at the hearing
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`by an attorney, but could have a union representative present with them. BNSF paid the
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`employees that it selected to testify at the hearing, but it did not pay any employees that
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`were selected to testify by the charged employee.
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`
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`In Fresquez’s case, an investigation hearing was held regarding the allegation of
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`insubordination that Paz made against him. The hearing was conducted by Everett
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`Percival, a BNSF management employee. Paz was the only witness to testify against
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`Fresquez. Prior to the hearing, Carpenter sent an email to Paz giving him detailed
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`instructions on how to testify at the hearing. The email included specific directions on
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`what to say when the hearing officer asked Paz what happened. For example, Carpenter
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`instructed Paz to say: “Employee refused to get tools and measure repaired track defect
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`when instructed to do so.” Id., Vol. VII at 1652. Carpenter also told Paz to “be firm
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`about your instructions being clear and direct, not light and optional.” Id. During the
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`hearing, Paz, consistent with the instructions from Carpenter, testified that he told
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`Fresquez three times to remeasure the defect. Paz also testified during the hearing that he
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`determined that no defect was present.
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`The transcript of the investigation hearing was then sent to BNSF’s PEPA team.
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`The PEPA team was comprised of employees who worked for BNSF’s Labor Relations
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`Department. A member of the PEPA team, Stephanie Detlefsen, reviewed the hearing
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`transcript and concluded that the evidence supported a charge of insubordination. Based
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`upon this conclusion, Detlefsen recommended that Fresquez be terminated from his
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`employment with BNSF.
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`Detlefsen’s recommendation was reviewed by Adam Miller, who at the time
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`served as the General Director of Line Maintenance for BNSF’s Powder River Division
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`and, in that role, acted as Carpenter’s direct supervisor. Miller decided to terminate
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`Fresquez for insubordination because “[h]e refused instruction from his supervisor.”4
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`Id., Vol. IX at 2377. BNSF, acting on Miller’s decision, formally terminated Fresquez
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`from his employment on May 27, 2016.
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`II. Procedural background
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`On April 5, 2017, Fresquez filed this action against BNSF alleging that BNSF
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`violated the FRSA by terminating his employment in retaliation for engaging in protected
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`activities under the FRSA.5 Specifically, Fresquez alleged that BNSF violated 42 U.S.C.
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`§ 20109(a)(1), (a)(2), and (b)(1)(A). Fresquez’s complaint sought relief in the form of
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`reinstatement to his position, expungement of any record of his alleged insubordination,
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`compensatory damages, damages for emotional distress, punitive damages, and costs and
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`fees.
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`The case proceeded to a six-day jury trial in February 2019. At the conclusion of
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`all the evidence, BNSF moved for judgment as a matter of law. The district court granted
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`
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`4 It is undisputed that a failure to follow a supervisor’s instruction is not
`considered by BNSF to be a stand-alone dismissible violation. It is also undisputed that
`classifying a particular incident as insubordination or failure to follow a supervisor’s
`instruction is often subjective.
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` Before initiating these federal court proceedings, Fresquez filed a complaint with
`the Occupational Safety and Health Administration. See 49 U.S.C. § 20109(d)(1).
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 18
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`in part and denied in part BNSF’s motion. The district court “conclude[d] that the only
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`protected activity that could be a contributing factor to [Fresquez’s] termination [wa]s the
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`May 2016 incident,” and it consequently granted judgment as a matter of law in favor of
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`BNSF with respect to “the 2015 events” cited by Fresquez. Id., Vol. X at 2490. But the
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`district court also “order[ed] that the jury c[ould] consider the . . . 2015 events as
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`background” evidence. Id. The district court rejected BNSF’s argument that it had
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`produced clear and convincing evidence that Fresquez would have been terminated from
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`his employment absent engaging in protected activity under the FRSA. With respect to
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`the issue of damages, the district court found that Fresquez “ha[d] introduced sufficient
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`evidence to submit the issue of emotional damages and punitive damages to the jury.” Id.
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`at 2492.
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`The jury, after deliberating for approximately three hours, returned a verdict in
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`favor of Fresquez. More specifically, the jury found that Fresquez engaged in protected
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`activity defined by the FRSA, BNSF knew that Fresquez engaged in protected activity,
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`Fresquez suffered an unfavorable personnel action, and Fresquez’s engagement in
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`protected activity was a contributing factor to the unfavorable personnel action. The jury
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`also found that BNSF failed to prove by clear and convincing evidence that it would have
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`taken the same personnel action against Fresquez even if he had not engaged in any
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`Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 19
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`protected activity.6 The jury found that Fresquez had proven by a preponderance of the
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`evidence that he should be awarded compensatory damages for emotional distress, pain,
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`suffering, inconvenience, or mental anguish, and it found the amount of such damages to
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`be $800,000. Lastly, the jury found that Fresquez had proven by a preponderance of the
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`evidence that BNSF acted with reckless or callous disregard of his right to be free from
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`retaliation for engaging in protected activity, and it awarded Fresquez $250,000 in
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`punitive damages.
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`The jury was not asked to determine back pay or front pay because the district
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`court determined that those were equitable remedies that it would decide. After the jury