Key Points

  • The Eighth Circuit affirmed a jury verdict for Union Pacific in an FRSA retaliation suit brought by employee Stephen P. Parr.
  • The panel held that Murray v. UBS Securities, a Sarbanes-Oxley case, does not displace Kuduk v. BNSF's rule that FRSA plaintiffs must prove intentional retaliation, declining to follow the Second Circuit's decision in Ziparo v. CSX Transportation.
  • The court reasoned that Murray addressed only Sarbanes-Oxley and that an instruction requiring intentional retaliation, rather than animus, may not conflict with Murray even if it applied to the FRSA.
  • The panel upheld a business judgment instruction as consistent with FRSA claims and with jury consideration of pretext.
  • The court upheld limiting the relevant protected activity to December 2022 through February 2023, based on Parr's trial testimony, and rejected his tried-by-consent argument.

A federal appeals court ruled on Friday that railroad workers suing under the federal rail whistleblower law must still prove their employer intentionally retaliated against them. The court declined to follow the Second Circuit, which has read a 2024 Supreme Court decision as eliminating that requirement.

The U.S. Court of Appeals for the Eighth Circuit affirmed a jury verdict for Union Pacific Railroad Co. in a suit by Stephen P. Parr, an employee the railroad fired after a stream of complaints to its internal hotlines. Circuit Judge Benton wrote the opinion for a panel that also included Judges Loken and Erickson. The panel rejected all three of Parr's challenges to the trial judge's jury instructions.

The decision leaves the federal appeals courts divided over the reach of Murray v. UBS Securities LLC, in which the Supreme Court held that whistleblowers under the Sarbanes-Oxley Act need not prove "retaliatory intent" or "animus." The Second Circuit has applied that holding to the Federal Rail Safety Act, or FRSA. The Eighth Circuit held that its own precedent requiring proof of intentional retaliation under the rail statute remains binding.

Union Pacific hired Parr in 2015 and trained him to report safety issues to a "Safety Line" and violations of law and company policy to a "Values Line," according to the opinion. From 2018 to 2022, he made more than 160 Safety-Line complaints and more than 100 others directly to local managers.

In 2022, Parr began texting and emailing employees who were not his direct supervisors. One of them reported the communications to a general manager, who in December 2022 gave Parr a "letter of counsel" barring him from raising safety concerns by text, email or social media and directing him to the hotlines. Parr then filed Values-Line complaints of retaliation and ethics violations through February 2023.

The railroad investigated Parr for misusing the Values Line and failing to follow management's instructions. After a disciplinary hearing, it fired him for being quarrelsome, discourteous and insubordinate. The Public Law Board later reinstated him without backpay. A jury in the Western District of Missouri found that Parr had not proved his prima facie case, and U.S. District Judge Stephen R. Bough denied his motion for a new trial.

On appeal, Parr challenged Instruction 12, which told jurors he had to prove that "Union Pacific intentionally retaliated against plaintiff by firing plaintiff, due, in whole or in part, to plaintiff Stephen Parr having reported a hazardous safety condition to defendant Union Pacific." That language addresses the statute's contributing-factor element, the requirement that protected activity played some part in the adverse action.

The instruction tracked Eighth Circuit precedent. In Kuduk v. BNSF Railway Co., a 2014 decision, the circuit held that "the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity." In a 2017 case, Blackorby v. BNSF Railway Co., the court reversed a trial judge for telling jurors that a worker need not establish intentional retaliation. Judge Benton wrote that the instruction in Parr's trial "mirrors the Eighth Circuit Model Jury Instructions."

Parr argued that Murray had overruled those cases. In Murray, the Supreme Court reversed a Second Circuit ruling and held that the Sarbanes-Oxley contributing-factor element did not impose a separate, heavier burden to show retaliatory intent. Justice Alito, concurring, wrote that "the plaintiff must show that a reason for the adverse decision was the employee's protected conduct."

The Second Circuit then overturned its own earlier ruling requiring retaliatory intent in rail cases. In Ziparo v. CSX Transportation Inc., decided in 2025, that court reasoned that "both the FRSA and SOX incorporate the same burden-shifting framework and contributing factor causation standard," known as the AIR-21 framework, so Murray's reasoning "binds us here with equal force."

The Eighth Circuit panel declined to follow suit. Judge Benton noted that "one panel is bound by the decision of a prior panel" unless an intervening Supreme Court decision is inconsistent with the earlier opinion. "But, Murray and Kuduk are reconcilable," he wrote. Murray involved the Sarbanes-Oxley Act, he added, and "the Supreme Court did not indicate any intent to extend its decision to other statutes applying the AIR-21 framework."

The panel gave a second reason. Instruction 12 asked only whether Union Pacific "intentionally retaliated" against Parr, Judge Benton wrote, "calling into question whether Murray—which prohibited requiring animus—would control even if it applied to the FRSA."

The court also upheld Instruction 13, which told jurors not to concern themselves with "whether defendant Union Pacific's actions were wise, reasonable, or fair." Parr argued that the rail statute provides no basis for such a business judgment instruction and that it kept the jury from weighing pretext. The panel pointed to its 2019 approval of nearly identical language in a second Blackorby appeal and rejected Parr's argument that the earlier approval was dicta.

Juries hear business judgment instructions in other employment-discrimination contexts where pretext is at issue, the court said, citing a Title VII decision. It found Parr's reliance on Equal Pay Act cases "misplaced because the EPA is a strict liability statute not requiring discriminatory intent."

Finally, the panel upheld Instruction 12's limit on the protected activity the jury could consider to reports made from December 2022 through February 2023. Judge Benton cited Parr's own trial testimony about the safety reports he filed from 2018 to December 2022. "In other words, Parr said he was not subject to retaliation based on safety reports made before December 2022," the judge wrote.

Parr had argued that his broader theory was tried by consent, which under the federal rules would allow the pleadings to be amended to match the evidence. The court disagreed, noting that Parr never moved to amend his complaint, that Union Pacific requested the time limit, and that the trial judge kept it over Parr's objection.

The judgment for Union Pacific is affirmed. The ruling leaves in place the jury's finding that Parr failed to prove his prima facie case of retaliation.