Ludlow v. BNSF Ry. Co., No. 14-2486 (8th Cir. 2015)
Annotate this CaseBefore 2010, no disciplinary issues were recorded in the employment history of former BNSF Railway claims representative Ludlow. In 2009, Ludlow discovered his forged signature on documents submitted to the Department of Veterans Affairs certifying that coworker Fernandes was eligible to receive VA training benefits. Ludlow reported the forgery to his supervisor, Wunker, opining that Fernandes may have been responsible. Wunker did not investigate or report to his superiors, contrary to what Ludlow believed BNSF protocol required. In 2010, Ludlow reported the forgery to the BNSF police, notifying Wunker the following day. Wunker expressed concern that the disclosure could cost him his job and began sending complaints regarding Ludlow’s workplace behavior to Human Resources. After his termination, Ludlow sued for wrongful termination in violation of Nebraska public policy and whistleblower retaliation under the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. 48-1114(3). A jury found BNSF liable on the NFEPA claim and awarded damages. The court awarded $206,514.13 in attorney’s fees and $22,202.16 in nontaxable costs. The Eighth Circuit affirmed, rejecting challenges to jury instructions that Ludlow need only prove that his protected activity was a “motivating factor” in the termination and to the amount of attorney’s fees and costs.
Court Description: Loken, Author, with Smith and Colloton, Circuit Judges] Civil case - Employment law. In an action claiming wrongful termination in violation of Nebraska public policy and whistleblower retaliation in violation of the Nebraska Fair Employment Practices Act (NFEPA), defendant had failed to preserve the issue of whether it was entitled to judgment as a matter of law on the question of whether instructing plaintiff to cease and desist from pursuing allegations of forgery as an employee of defendant was not an unlawful practice under NFEPA because it did not renew the issue in its post-verdict Rule 50(b)motion; even if it had been preserved the district court properly analyzed and instructed the jury on the question and the evidence was sufficient to support the verdict; plaintiff presented sufficient evidence for a jury to find defendant liable for unlawful retaliation under the cat's paw theory; argument that the court erred in instructing the jury that plaintiff need only prove that his protected activity was a motivating factor in his termination rejected as the Nebraska Supreme court has held that only a causal connection must be proved; no error in awarding attorneys' fees and costs to plaintiff, including the cost of computerized legal research.
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