182372P.pdf   08/23/2019  Edward Blackorby  v.  BNSF Railway Company
   U.S. Court of Appeals Case No:  18-2372
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Melloy, Author, with Shepherd and Grasz, Circuit Judges] 
   Civil Case - Federal Railroad Safety Act. In this action claiming 
   intentional retaliation, the jury instruction misstated the "honest held 
   belief" defense in the context of the Act's contributing factor standard 
   and misallocated and misstated the burden of proof. The plaintiff bears 
   the burden of proving that intentional retaliation served as a 
   contributing factor in an adverse employment action and the defense bears 
   the burden of proving an affirmative defense by clear and convincing 
   evidence that it would have taken the same action in absence of protected 
   conduct. Error was prejudicial because the instructions as a whole 
   identified the "honestly held belief" as part of the employee's prima 
   facie case and notwithstanding an honestly held belief that the employee 
   engaged in misconduct, an employer may be held liable if the retaliation 
   was a contributing factor in the disciplinary decision. Blackorby's 
   objection to the instruction was sufficiently specific to preserve the 
   wording and allocation of burden of proof in the instructions. Case is 
   reversed.