Stephen Parr v. Union Pacific Railroad Co.
CourtCourt of Appeals for the Eighth Circuit
Date FiledOctober 30, 2026
Docket25-3379
StatusPublished
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Full Opinion
United States Court of Appeals
For the Eighth Circuit
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No. 25-3379
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Stephen Parr
Plaintiff - Appellant
v.
Union Pacific Railroad Company
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 24, 2026
Filed: October 30, 2026
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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
Stephen P. Parr sued Union Pacific Railroad Company, alleging retaliation for
protected activity under the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109.
The jury found no retaliation. Parr appeals, challenging the district court’s1 jury
instructions. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Union Pacific hired Parr in 2015. It trained him to report workplace safety
issues to the “Safety Line” and violations of laws, regulations, and company policy
to the “Values Line.” From 2018 to 2022, Parr made over 160 Safety-Line
complaints and over 100 more complaints directly to his local managers.
In 2022, Parr began making complaints by text and email to employees who
were not his direct supervisors, including Carrie Stevens. Uncomfortable with his
communications, Stevens reported her experience to General Manager Coleman
Bell. Bell met with Parr in December 2022, giving him a “letter of counsel”
prohibiting him from communicating safety concerns by text, email, or social media.
He directed Parr to use the Safety and Values Lines.
After this meeting, Parr submitted Values-Line complaints of retaliation and
ethics violations. The Values-Line complaints continued through February 2023.
Union Pacific then informed Parr by letter that he was under investigation for
misusing the Values Line and failing to follow management’s instructions. After a
disciplinary hearing, he was terminated for being quarrelsome, discourteous, and
insubordinate. He appealed the decision to the Public Law Board. It reinstated him
without backpay.
Parr sued Union Pacific, alleging retaliation in violation of the FRSA. The
jury returned a verdict for Union Pacific, finding Parr did not prove his prima facie
case. The district court denied the motion for a new trial. He appeals, asserting three
jury instruction errors.
1
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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II.
Parr contends three jury instruction errors require reversal. This court
“review[s] a district court’s jury instructions for an abuse of discretion.” Blackorby
v. BNSF Ry. Co., 936 F.3d 733, 735 (8th Cir. 2019) (Blackorby II). The “jury
instructions, taken as a whole, must fairly and adequately represent the evidence and
applicable law in light of the issues presented to the jury in a particular case.” Id.
A.
Parr asserts Instruction 12 incorrectly required “intentional retaliation” to
prove his FRSA claim—contrary to the Supreme Court’s ruling in Murray v. UBS
Securities, LLC, 601 U.S. 23 (2024). Instruction 12 states Parr must prove “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.”
Under the FRSA, “[a] railroad carrier . . . shall not discharge, demote, suspend,
reprimand, or in any other way discriminate against an employee for[] reporting, in
good faith, a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(A).
A plaintiff must show “(i) he engaged in a protected activity; (ii) [the railroad] knew
or suspected, actually or constructively, that he engaged in the protected activity;
(iii) he suffered an adverse action; and (iv) the circumstances raise an inference that
the protected activity was a contributing factor in the adverse action.” Kuduk v.
BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014). The challenged portion of
Instruction 12 addresses the contributing-factor element.
“[T]he contributing factor that an employee must prove is intentional
retaliation prompted by the employee engaging in protected activity.” Id. at 791.
This court clarified that the “essence” of FRSA retaliation is “discriminatory
animus.” Id. Failing to instruct on “intentional retaliation” is reversible error. See
Blackorby v. BNSF Ry. Co., 849 F.3d 716, 722 (8th Cir. 2017) (Blackorby I)
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(reversing district court because “it instructed the jury that Blackorby need not
establish intentional retaliation”). The district court’s instruction follows this court’s
precedent and mirrors the Eighth Circuit Model Jury Instructions. See Eighth
Circuit Model Jury Instructions (Civil) § 18.40 (2025),
https://juryinstructions.ca8.uscourts.gov/; Bailey v. Department of Elem. &
Secondary Educ., 451 F.3d 514, 519 (8th Cir. 2006) (“The district court was well
within its discretion to submit its own instructions, which relied on the evidence
submitted at trial and followed the recommendations of the Eighth Circuit Model
Jury Instructions.”). Instruction 12 fairly and accurately represents the contributing-
factor element, which requires showing intentional retaliation was partly due to
protected activity.
Parr argues that Murray overrules Kuduk and Blackorby I. The Supreme
Court there held that the whistleblower provision of the Sarbanes-Oxley Act does
not require “retaliatory intent” or “animus” for the contributing-factor element.
Murray, 601 U.S. at 32–33. The Second Circuit had reversed because the jury
instructions did not require proving the employer “took the adverse employment
action against the whistleblower-employee with retaliatory intent.” Id. at 31. The
Supreme Court reversed, holding the Sarbanes-Oxley Act’s contributing-factor
element did not require “some separate, heavier burden on the plaintiff to show
‘retaliatory intent,’” like animus. Id. at 37, 39. Concurring, Justice Alito clarified
that “intent” is still required and “the plaintiff must show that a reason for the adverse
decision was the employee’s protected conduct.” Id. at 40 (Alito, J., concurring).
Based on Murray, the Second Circuit overturned a prior panel decision
requiring retaliatory intent or animus in the FRSA context. Ziparo v. CSX Transp.,
Inc., 160 F.4th 314, 334–35 (2d Cir. 2025). That court stated, “Murray clearly held
that retaliatory intent is no longer a relevant consideration for a SOX claim subject
to AIR-21.” Id. at 335. Thus, “because both the FRSA and SOX incorporate the
same burden-shifting framework and contributing factor causation standard (the
‘AIR 21’ burden-shifting framework), Murray’s reasoning binds us here with equal
force.” Id. at 323.
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Parr urges this court to follow the Second Circuit’s lead and overturn Kuduk
based on the Supreme Court’s decision in Murray. “It is a cardinal rule in our circuit
that one panel is bound by the decision of a prior panel.” Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc). True, this court may “revisit an opinion
of a prior panel if an intervening Supreme Court decision is inconsistent with the
prior opinion.” McCullough v. AEGON USA, Inc., 585 F.3d 1082, 1085 (8th Cir.
2009). But, Murray and Kuduk are reconcilable. Murray involved the Sarbanes-
Oxley Act; the Supreme Court did not indicate any intent to extend its decision to
other statutes applying the AIR-21 framework. Here, Instruction 12 requires only
that Union Pacific “intentionally retaliated” against Parr, calling into question
whether Murray—which prohibited requiring animus—would control even if it
applied to the FRSA.
The district court did not abuse its discretion by instructing the jury that Parr
must prove Union Pacific “intentionally retaliated” against him “due, in whole or in
part” to protected activity.
B.
Challenging Instruction 13, Parr argues it was improper because the FRSA
provides no basis for a business judgment instruction and Instruction 13 bars the jury
from considering pretext. Instruction 13 states: “In deciding plaintiff Stephen Parr’s
claim, you should not concern yourself with whether defendant Union Pacific’s
actions were wise, reasonable, or fair.”
This court has approved a business judgment instruction in FRSA cases. See
Blackorby II, 936 F.3d at 737. In Blackorby II, the plaintiff challenged an
instruction that began: “In deciding Plaintiff’s claim, you should not concern
yourself with whether Defendant BNSF Railway’s actions were wise, reasonable, or
fair.” Id. at 736 n.4. This court ruled that “the first sentence is an unobjectionable
statement of the business judgment rule, presented generically and without reference
to any party’s burden of proof.” Id. at 737. This court concluded, “To the extent
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Blackorby directs his challenge at this articulation of the business judgment rule, we
reject his argument.” Id.
Parr’s challenge to a substantively similar jury instruction fails. He argues the
ruling in Blackorby II was dicta because the case was reversed based on an incorrect
statement of law in the second sentence of the instruction. Id. However, this court
considered whether the instruction, “taken as a whole . . . fairly and adequately
represent[ed] the evidence and applicable law.” Id. at 735. As part of its holding,
this court considered the business judgment sentence.
Parr also argues the business judgment instruction bars the jury from
considering pretext. Juries hear business judgment instructions in other
employment-discrimination contexts where pretext is at issue. See, e.g., Stemmons
v. Missouri Dep’t of Corr., 82 F.3d 817, 819–20 (8th Cir. 1996) (holding district
courts “must offer” a business judgment instruction in a Title VII case “whenever it
is proffered by the defendant,” despite plaintiff having the burden “to demonstrate
that the department’s explanation was pretextual”). The business judgment
instruction here is compatible with Parr’s FRSA claim.
Parr’s reliance on Equal Pay Act cases—rejecting a business judgment
instruction—is misplaced because the EPA is a strict liability statute not requiring
discriminatory intent. See Bauer v. Curators of the Univ. of Mo., 680 F.3d 1043,
1045 (8th Cir. 2012) (“The EPA, a strict liability statute, does not require plaintiffs
to prove that an employer acted with discriminatory intent . . . .”).
The district court did not abuse its discretion by giving a business judgment
instruction.
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C.
Parr challenges the time period in Instruction 12, which required the jury to
find that “plaintiff Stephen Parr reported a hazardous safety condition to defendant
Union Pacific in good faith in December of 2022 through February of 2023.”
The complaint pleads that Parr had a disciplinary hearing in April 2023 for
“allegedly misus[ing] the Union Pacific Values Line and allegedly fail[ing] to follow
instructions from [his] management team.” At the hearing, Union Pacific
“introduced evidence that Parr reported safety concerns to its Values Line between
December 20, 2022, and February 11, 2023.” Parr pled Union Pacific “used these
reports of safety concerns as evidence to support its decision to fire” him and that
Union Pacific “fired him because he made safety reports too frequently.” The rest
of the complaint is ambiguous about the protected activity that caused the retaliation.
Parr’s trial testimony supports the time period in Instruction 12. While
evidence shows Parr made over 160 Safety-Line complaints from 2018 to 2022, he
agreed that he was not fired, demoted, or disciplined “the paper way” for any 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 time-
period instruction is supported by the evidence. See Safety Nat’l Cas. Corp. v.
Austin Resols., Inc., 639 F.3d 498, 501 (8th Cir. 2011) (“A party is entitled to a jury
instruction . . . if the instruction is both legally accurate and supported by the
evidence.”). Parr’s testimony establishes that reports from December 2022 through
February 2023 are the relevant protected activity. The district court’s instruction
properly reflects this limit.
Parr counters that his theory—that the retaliation was partly due to safety
reports made before December 2022—was tried by consent and he could amend the
complaint to conform. See Fed. R. Civ. P. 15(b)(2) (“When an issue not raised by
the pleadings is tried by the parties’ express or implied consent, it must be treated in
all respects as if raised in the pleadings. A party may move—at any time, even after
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judgment—to amend the pleadings to conform them to the evidence . . . .”). Parr
never moved to amend the complaint, and the record does not show the issue was
tried by consent. Union Pacific requested the instruction with the time period.
Though Parr objected, the court agreed with Union Pacific to keep the time period.
See United States v. $84,615 in U.S. Currency, 379 F.3d 496, 500 (8th Cir. 2004)
(“[I]ssues actually tried without objection are effectively incorporated into the
pleadings.” (emphasis added)).
The district court did not abuse its discretion by limiting the period of relevant
protected activity to December 2022 through February 2023.
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The judgment is affirmed.
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