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More On the FRSA’s “Clear and Convincing Evidence” Defense Standard

Posted in Federal Rail Safety Act

On the heels of its signal en banc decision in Powers v. Union Pacific Railroad Company, the Administrative Review Board has issued another important decision further clarifying the standard for a “clear and convincing evidence” defense in Federal Rail Safety Act whistleblower retaliation cases.

The case is the ARB’s decision affirming the remand ruling in DeFrancesco v. Union Railroad Company. The ARB begins by highlighting the public policy informing the FRSA whistleblower statute:

A employee’s right to report a workplace injury is “a core protected right” under the FRSA that benefits not only the employee but also the railroad employer and the public. If employees do not feel free to report injuries or illnesses without fear of incurring discipline, dangerous conditions will go unreported resulting in putting the employer’s entire work force as well as the general public potentially at risk.

Where a protected injury report becomes the basis for investigation into the worker’s conduct of a type designed to lead to discipline, there is a heightened danger that the investigation will chill injury reporting by sending a message to other employees that injury reports are not welcome.

Congress responded by making it difficult for railroads to defend against their employee whistleblower retaliation claims by requiring them to prove by clear and convincing evidence it would have taken the same unfavorable personnel action in the absence of the protected activity. “Clear” evidence requires “an unambiguous explanation for the adverse actions in question.” “Convincing” evidence means proof to a “reasonable certainty.” As both the ARB and federal courts stress:

“For employers, this is a tough standard, and not by accident.” One of the important interests Congress sought to protect by the 2007 amendments to FRSA was the right of railroad employees to report injury without fear of retaliation for so doing. …. the legislative history surrounding adoption of the tough clear and convincing standard under the FRSA whistleblower protection provision reveals Congressional concern about a history of retaliation against railway employees who report an injury.

Factors that are fatal to a railroad’s defense include the disparate treatment of injured employees and the selective enforcement of rules and policies. Also fatal is evidence the railroad’s investigation of the injury was conducted more to find some pretext for retaliation than to identify and eliminate the root cause of the hazard that lead to the injury.

So here are the questions the ARB stressed must be answered when determining if the violation of a workplace safety rule is being used as a pretext for discrimination against an injured employee:

  • Does the railroad routinely monitor for compliance with the work rule in the absence of an injury?
  • Does the railroad consistently impose the same discipline on employees who violate the work rule but do not report an injury?
  • Is the rule so vague or subjective it can be easily used as a pretext for discrimination?
  • Was the investigation designed more to unearth a plausible basis for punishing the injured employee than to reveal the root cause of the injury?
  • Were all the supervisors whose actions or inaction contributed to the root cause of the injury also disciplined, or was only the injured employee disciplined?

Bottom line? DeFrancesco confirms it is not enough for the railroad to show the employee was disciplined for violating a safety rule. It is not enough for the railroad to show it disciplines employees who do not report an injury. A railroad’s defense still fails if it cannot prove to a reasonable certainty that it routinely monitors for compliance with the work rule in the absence of an injury, and that it consistently imposes the same discipline on employees who violate the work rule but do not report an injury. For more information on railroad whistleblower rights, go to the Rail Whistleblower Library.

Another Circuit Court Shoots Down “Election of Remedies” Defense

Posted in Federal Rail Safety Act

In a resounding decision, the 4th Circuit Court of Appeals explains why a rail worker’s pursuit of a racial or sexual discrimination claim does not constitute an “election of remedies” barring that worker from pressing a Federal Rail Safety Act Section 20109 whistleblower retaliation claim.

In Lee v. Norfolk Southern Railway Company, carman Charles Lee was suspended after he insisted on complying with FRA safety regulations requiring him to “bad order” defective rail cars for repair. He first filed a discrimination complaint claiming the suspension was motivated by his race, and later filed a separate FRSA action claiming it was in retaliation for his safety whistleblowing.

The district court granted summary judgment on the FRSA claim, holding the racial discrimination lawsuit constituted an “election of remedies” that barred his subsequent FRSA action because both involved the “same allegedly unlawful act” of suspension. Lee appealed, and the U.S. Solicitor of Labor and the Association of American Railroads weighed in with amicus briefs. In a comprehensive opinion, the 4th Circuit agreed with Lee and the Solicitor of Labor and reversed, holding that “a suspension on the basis of race in not ‘the same allegedly unlawful act’ as a suspension in retaliation for FRSA whistleblowing”:

we conclude that the FRSA’s Election of Remedies provision is unambiguous because it is susceptible to only one reasonable interpretation–that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing. And even if we did find the provision ambiguous, we would still reverse because the legislative history and context of the statute demonstrates that the provision does not sweep as broadly as Norfolk Southern suggests.

According to the Secretary of Labor (appearing as an amicus on Lee’s behalf), both the statutory context and legislative history make clear that the Election of Remedies provision only requires an employee to choose between proceeding under the FRSA or another law prohibiting retaliation for the same types of rail safety or security-related whistleblowing addressed in the FRSA. . . . Congress only intended to bar railroad employees from seeking duplicative relief under overlapping anti-retaliation or whistleblower statutes that provide protections similar to the protections in FRSA, such as Section 11(c) of the OSH Act and various state versions of the OSH Act, many of which track Section 11 (c) nearly verbatim.

The Circuit Court stressed that both FRSA Section 20109 and OSHA’s 11(c) are statutes “aimed at preventing retaliation for engaging in protected whistleblowing activities regarding safety and health in the workplace,” whereas Section 1981 seeks to curb racial and sexual discrimination. As such, the “unlawful acts” they address are not the same, and raise “distinct causes of action with different elements and burdens of proof.”

So hats off to Attorney Bill Tucker and the Secretary of Labor for insisting the federal courts get it right. Here is the full text of Lee v. Norfolk Southern Railway Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

When Context Is Everything

Posted in Federal Rail Safety Act

When does a sentence not mean what it seems to say? When it is quoted out of context. And that is certainly the case with one sentence in the 8th Circuit’s Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), decision railroad attorneys love to rip out of context and wave at judges as if it somehow changes three decades of whistleblower law.

Here is the sentence: “But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” This is just another way of saying that, in order to satisfy the “contributing factor” element, there must be some direct or circumstantial evidence the employee’s Federal Rail Safety Act protected activity played a part in causing the adverse action. In other words, the adverse action qualifies as “intentional retaliation” if there is some causal connection between the employee’s protected activity and the adverse action.

It is the maladroit phrase “an employee must prove intentional retaliation” that gives railroads the opportunity to sow mischief. Railroad attorneys like to quote that phrase out of context and then pretend it overrules settled cat’s paw precedent.

But in fact Kuduk does not change or overrule the United States Supreme Court’s “cat’s paw” decision in Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), nor could it. Here is the full context of the 8th Circuit’s “intentional retaliation” comment in Kuduk:

The cat’s paw theory articulated in Staub is consistent with the [FRSA] regulation stating that the FRSA knowledge requirement may be satisfied by circumstantial evidence the employer had actual or constructive knowledge of protected activity. . . . We agree . . . that, under the [FRSA] statute’s “contributing factor” causation standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” . . . But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.

So, to the extent railroads invoke Kuduk to argue proof of intentional retaliatory motive now is required, that is flat error. Kuduk’s use of the phrase “intentional retaliation” is nothing more than a misleading reference to any adverse action prompted by an employee’s protected activity, and it does not change the fundamental whistleblower law precept that proof of retaliatory motive or intent is not required. The principle remains that whenever an employee satisfies the contributing factor element, then perforce the retaliation is “intentional” and any other evidence of motive or intent is not necessary.

And in fact district court judges cite Kuduk to confirm that the FRSA does not require employees to “conclusively demonstrate” the railroad’s retaliatory motive: see, e.g., Gunderson v. BNSF Railway Co., 2015 U.S. Dist. LEXIS 99046 (D. Minn. July 28, 2015), and Miller V. CSX Transp., 2015 U.S. Dist. LEXIS 112507 (S.D. Ohio August 25, 2015).

Context is everything. Railroad whistleblower retaliation cases cannot be derailed by one imprecise phrase ripped out of context. For more information on Section 20109 of the Federal Rail Safety Act, go the Rail Whistleblower Library.

FRSA District Court Decisions Update

Posted in Federal Rail Safety Act

The trickle of federal district court FRSA decisions has turned into a steady stream. To keep up, here is a listing of recent district court opinions interpreting Section 20109 of the Federal Rail Safety Act, with a summary of their significance.

Temporal proximity

Myles v. Northeast Ill. Reg’l Commuter Rail Corp., 2015 U.S. Dist. LEXIS 90798 (N.D. Ill. July 14, 2015).
Subsection (a)(4) reporting of a work-related injury.

Close temporal proximity alone is sufficient to satisfy the contributing factor element, following Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013), Davis v. Union Pac. R.R. Co., 2014 WL 3499228 (W.D.La. July 14, 2014), and Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869 (D.Iowa 2013).

Good faith reporting standard, and inextricably intertwined

Mosby v. Kan. City S. Ry. Co., 2015 U.S.Dist. LEXIS 93869 (E.D.Ok July 20, 2015).
Subsection (a)(4) reporting of a work-related injury.

Denied summary judgment, endorsing the good faith reporting standard applied in Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869, 883-84 (D.Iowa 2013) (“even assuming that the Plaintiff employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury to the Railroad, he genuinely believed the injury he was reporting was work-related.”), and denying summary judgment regarding the contributing factor element based on the fact the adverse action was inextricably intertwined with the reporting of the work-related injury.

Miller V. CSX Transp., 2015 U.S. Dist. LEXIS 112507 (S.D. Ohio August 25, 2015).
Subsection (a)(4) reporting of work-related injury.

Denied summary judgment, applying the good faith reporting standard of Ray, Murphy, and Koziara v. BNSF Railroad Co., 2015 U.S. Dist. LEXIS 2382 (W.D. Wisc. January 9, 2015).

Clear and Convincing Evidence

Gunderson v. BNSF Railway Co., 2015 U.S. Dist. LEXIS 99046 (D. Minn. July 28, 2015).
Subsection (a)(4) reporting work related injury and (b)(1)(A) raising safety concerns.

Granted summary judgment based on clear and convincing evidence that the employee’s violation of Railroad’s workplace violence policy would have resulted in his termination in the absence of his unrelated protected activity.

Jauhola v. Wis. Cent., 2015 U.S. Dist. LEXIS 109930 (D.Minn. August 20, 2015).
Subsection (a)(1) and (a)(2) safety complaints, and (b)(1)(A) reporting safety hazards.

Granted summary judgment based on clear and convincing evidence that the employee’s release of track authority while a crew was still on the track would have resulted in his termination in the absence of his unrelated protected activity.

Refusal to work

Stokes v. Southeastern Pennsylvania Transp. Authority, 2015 U.S. Dist. LEXIS 115161 (E.D. Pa. August 26, 2015).
Subsection (b)(1)(B) refusal to work.

Granted motion to dismiss for failure to plead facts sufficient to support a Subsection (b)(1)(B) refusal to work when confronted by a hazardous safety condition presenting an imminent danger of death or serious injury.

Railroads Cannot Interfere With Injured Worker Medical Treatment

Posted in Federal Rail Safety Act

In the landmark decision of Santiago v. Metro North Railroad, the Administrative Review Board held that Federal Rail Safety Act “Section 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury.” The Administrative Review Board also held that a prima facie FRSA violation is established “the instant that the railroad carrier directly or indirectly inserts itself into the process and causes a denial, delay, or interference with the medical treatment.” Such a railroad is liable under the FRSA unless it proves “by clear and convincing evidence that the result would have been the same with or without the railroad’s interference” with the medical treatment.

Now, in a follow up Santiago v. Metro North Railroad Decision, the ARB clarifies what a “clear and convincing” defense requires in medical interference cases.

The facts are these. When a chair at his Railroad work place collapsed as he sat down, Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North’s Medical Department immediately reclassified Santiago’s occupational back injury as “non-occupational” and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

The Administrative Law Judge found Metro North illegally interfered with Santiago’s medical treatment when it stopped paying for his medical treatment based on the decision of its Medical Department to reclassify his injury as non-occupational. That left Metro North liable unless it could prove “it was highly probable a reasonable doctor acting independently, without Metro North’s involvement, would have determined that the prescribed treatment was medically unreasonable.” In other words, the Railroad had to prove its interference in the medical treatment did not make any difference because the result would have been the same even in the absence of its interference.

In its follow up Decision affirming the punitive and make whole damages awarded to Santiago, the ARB explains it is not enough for a railroad to present a competing medical opinion. Rather, a railroad has to prove that “any reasonable doctor” would conclude the prescribed treatment was medically unreasonable, and that means every doctor in a pool of independent doctors, not just one doctor paid by the railroad. Merely generating “a debatable point” fails to carry the railroad’s heavy clear and convincing burden of proof. This is a tough standard to meet, but the ARB stressed that “Congress has made it clear that it wants railroad companies to completely stop interfering with the ability of railroad workers to seek proper medical treatment for work injuries.”

For the complete text of the Decisions, here is the first ARB Decision, here is the ALJ’s Decision, and here is the follow up ARB Decision. For more on the FRSA, go to the Rail Whistleblower Library page  or the Summary of Rail Whistleblower Rights.

A Miscellany of FRSA Updates

Posted in Federal Rail Safety Act

Here are some “need to know” developments affecting Federal Rail Safety Act Section 20109 railroad whistleblower retaliation matters.

New Rules of Practice For ALJ Trials

As of June 18, 2015, a new set of Rules of Practice and Procedure will apply to the trial of whistleblower cases before U.S. DOL Administrative Law Judges. An increasing number of whistleblower retaliation claims are being handled by ALJs, and the current revisions are designed to harmonize ALJ hearings with the current Federal Rules of Civil Procedure while streamlining handling of those claims. Some of the notable changes include:

Use of Depositions at Hearings

The new Rules add a provision allowing the unconditional use of depositions at ALJ hearings in the absence of an objection, and even over objection under certain circumstances.

Serving Subpoenas

The authority to issue subpoenas remains with the ALJ judge. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for one day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.

Rules of Evidence Remain the Same

Note that the ALJ Rules of Evidence remain the same as before.

OSHA Clarifies Standards of Proof for Whistleblower Investigators

OSHA’s Whistleblower Directorate has issued a Memorandum entitled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations.”  In sum, OSHA confirms that the “reasonable cause” standard applies to OSHA investigations, not the preponderance of evidence standard. The best way to understand this distinction is to visualize the four levels of proof applicable to whistleblower retalation cases, starting with the lowest.

Prima Facie

OSHA’s first step is to determine if the employee has alleged the existence of facts and evidence sufficient for the Investigator to infer the elements of the whistleblower retaliation claim can be satisfied. There is a prima facie case if there is just enough facts to create an inference or presumption that a violation can be proven. If so, the Investigator proceeds with the full investigation.

Reasonable Cause

OSHA’s next step is to determine whether there is “reasonable cause.” Reasonable cause is less than a preponderance of the evidence. Reasonable cause simply means a reasonable judge could believe a violation occurred. In other words, there is reasonable cause if the employee could succeed in proving a violation; proof that a violation actually has occurred is not required. The Memo states: “OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.”

Preponderance of the Evidence

This is the standard that applies to whistleblower trials. “Preponderance of the evidence” simply means the greater weight of the evidence. When the weight of all the evidence tips in favor of the employee, even if just ever so slightly, then the employee has carried his burden of proof by a preponderance of the evidence. A preponderance of the evidence is more than reasonable cause but less than reasonable certainty.

Clear and Convincing Evidence

This is the highest level of proof in whistleblower retaliation cases. It only applies to the employer, not the employee. “Clear and convincing evidence” requires proof to a degree of reasonable certainty or high probability. It is the burden of proof an employer must satisfy when proving its defense that it would have taken the exact same adverse action in the absence of the employee’s protected activity.

OSHA’s Memo stresses that when determining merit or non-merit, OSHA’s Investigators must apply “the reasonable cause standard, not the preponderance of the evidence standard that would apply to the claim at trial.” This is a subtle but crucial distinction that must never be forgotten. The reasonable cause standard is lower than the standard of proof at trial, and OSHA Investigators must not view the evidence as if they were a judge at trial. At the OSHA investigation stage, preponderance of the evidence is not required, only enough evidence for the Investigator to conclude a judge could find (not necessarily will find) a violation occurred.

Revision of OSHA’s Whistleblower Investigations Manual

OSHA’s Whistleblower Investigations Manual outlines the standards, procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA. In its first update since September of 2011, OSHA now has a revised Whistleblower Investigations Manual. Some of the highlights include:

Front Pay

The revised Manual lists the factors to consider when determining if an award of front pay (i.e., future lost wages) is appropriate: the complainant’s job or a comparable job is no longer available; the complainant is not physically able of performing his job; an employer’s offer of reinstatement is not made in good faith; there is “extreme hostility” between the parties and reinstatement would be too disruptive; or returning to work would cause debilitating anxiety or otherwise risk the complainant’s mental health.

Emotional Distress

The Manual’s discussion of emotional distress has been expanded from one paragraph to two pages. Although medical testimony is not necessary, it still is important for the complainant’s testimony to demonstrate manifestations of the distress and a causal connection between the adverse actions and the distress.


Chapter 6 has been extensively revised to provide updated guidance regarding remedies and settlement agreements.

ARB Decision in Leiva v Union Pacific Railroad

The ARB’s Decision in Leiva v Union Pacific Railroad is notable for implicitly recognizing that a signed leniency waiver does not bar a FRSA claim or damages for lost wages. Also, it recognizes that reports of generalized verbal threats with no physical contact qualifiy as a hazardous safety condition actionable under Section 20109’s Subsection (b)(1).

For more information on Federal Rail Safety Action Section 20109 railroad whistleblower matters, go to the Rail Whistleblower Library, which includes a Summary of Rail Whistleblower Rights.

Historic Settlement Confirms FRSA Coming of Age

Posted in Federal Rail Safety Act

In 2007, Congress passed a law designed to change the profoundly unsafe workplace culture on our nation’s railroads: Section 20109 of the Federal Rail Safety Act. Eight years later, the concerted action of OSHA, judges, and juries have forced the railroads to move beyond denial and anger to a grudging acceptance of the fact the FRSA is here to stay. And now, in a sure sign the FRSA has come of age, a railroad has agreed to settle a FRSA case for $699,000 with no confidentiality.

It is fitting this historic settlement comes in the Araujo v. New Jersey Transit Rail case. Tony Araujo was one of the first to use the FRSA to fight back against the retaliatory abuse of rail management. The Circuit Court opinion in his case will remain a landmark of railroad whistleblower retaliation law. And now his settlement sets an important precedent about the value of FRSA cases.

Tony has no physical injuries. He has been working full time for the past six years with the rest of his career ahead of him. He lost $60,000 in wages from his disciplinary suspension, but his case demonstrates that the value of a FRSA case is not driven by lost wages. Rather, a FRSA settlement must reflect the railroad’s total exposure to any and all economic losses, unlimited emotional distress, punitive damages, and attorney’s fees. Tony was adamant his bottom line was $699,000 with no confidentiality. Confronted with a jury trial, the Railroad made a rational business decision to limit its exposure and pay Tony’s demand with no confidentiality clause.

No confidentiality was a deal breaker for Tony. Confidentiality clauses freeze in place the chilling effect of retaliation. After a seven year legal battle, Tony refused to let his case be swept under that rug. Now Tony is free to talk to anyone anytime about anything and everything that happened to him. And that includes the Press, so the word will get out and encourage other rail workers to stand up for their rights.

It is one thing for a railroad’s legal advisors to engineer a settlement in order to avoid paying out even more money at trial; it is quite another for every level of rail management to internalize the cultural changes that will put a stop to FRSA lawsuits. That will happen only when railroads put the final missing piece in place: namely, holding individual managers personally accountable for conduct that violates the FRSA. If managers realize they will be fired or have to pay FRSA damages out of their own pockets, the culture will change overnight.

The NJT manager who decided to file the disciplinary charges against Tony is General Superintendent Joseph Meade. OSHA found his conduct violated the FRSA, and the Federal Railroad Administration also fined New Jersey Transit for violating regulations in connection with Tony’s case. Now the Railroad is paying $699,000 to avoid paying out even more. But instead of losing his job, Superintendent Meade is still working for the Railroad and presumably still looking to move up the ranks of management. So, same old same old.

Only when managers see FRSA violations derailing careers will the retaliation stop. Until then, the lawsuits will keep coming.

Eight years ago, Section 20109 of the FRSA was a formless law with many unanswered questions. Thanks to Tony Araujo’s courageous trail blazing, the FRSA now is a well-trodden path with clear direction signs. It has been an honor representing Tony all along the way, and heartening to see his case settled to his satisfaction. For more information on the Federal Rail Safety Act, go to the free Rail Whistleblower Library.

Administrative Review Board Clarifies FRSA Burdens of Proof

Posted in Federal Rail Safety Act

In a rare en banc decision, the U.S. Department of Labor’s Administrative Review Board explains why the Federal Rail Safety Act’s distinct two step burden of proof process must never be merged into one. Powers v. Union Pacific Railroad Company also is significant for reminding us that the subjective evaluations of railroad managers carry virtually no weight in the FRSA context.

Here are the major take aways from this important decision.

Different Burdens of Proof

All a rail worker need prove is that his FRSA protected activity (e.g., reporting an injury or a safety hazard) was a “contributing factor” in the adverse action taken by the railroad. The “preponderance of evidence” standard applies, meaning if the weight of the evidence tips the scales of justice ever so slightly in favor of the worker, then he has carried his burden of proof by a preponderance of the evidence.

The burden of proof then shifts to the railroad, which can escape FRSA liability only if it proves by “clear and convincing evidence” it would have taken the same adverse action in the absence of the employee’s protected activity. “Clear and convincing evidence” is a much higher standard, requiring the railroad to prove it is “reasonably certain” it would have taken the exact same adverse action if the employee had not engaged in the protected activity.

In Powers, the ARB underscores that these two steps can not and must not be merged: a railroad’s clear and convincing non-retaliatory reasons for its adverse action “may not be weighed against an employee’s showing of contributory factor.” In other words, the first step of the process must not be contaminated by the second step. The employee’s contributing factor proof cannot be offset or undercut by the railroad’s proof it would have taken the adverse action in the absence of the protected activity, when such proof is not relevant to the contributing factor element.  As seen below, examples of evidence that is not relevant to the contributory factor element include the subjective evaluations of railroad managers and their lack of a retaliatory motive.

Contributing Factor Standard

The contributing factor standard is notably lenient. In the words of the ARB:

The “contributing factor” standard was employed to remove any requirement on a whistleblower to prove that protected activity was a ‘”significant’, ‘motivating’, ‘substantial’, or ‘predominant’ factor in a personnel action in order to overturn that action.” Consequently, “[a] complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent’s reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant’s protected’ activity.”

This means a railroad can have a legitimate reason for taking the adverse action and still violate the FRSA if the employee’s protected activity also was a contributing factor. And in situations where the railroad’s basis for the adverse action is intertwined with the employee’s protected act (e.g., an injury report is deemed “false” or “dishonest”), the ARB confirmed it is the railroad who “bears the risk” the protected act and the reason for the adverse action “cannot be separated.”

And the railroad is liable under the FRSA even when there is no proof of a retaliatory motive by the managers involved:

Since complainant’s burden of proof does not require a showing of retaliatory motive by the employer, evidence that the employer lacked a retaliatory motive for the adverse action taken does not rebut complainant’s evidence supporting contributing factor.

Management’s Subjective Evaluations Carry Little Weight

The ARB stressed an important but often overlooked point, namely that a railroad manager’s use of subjective criteria as a basis for discipline carries no virtually weight in the FRSA context:

The relevancy of subjective witness statements for purposes of analyzing complainant’s showing of contributing factor, as a general matter, is highly questionable because subjective criteria can be a ready vehicle for discrimination. Subjective standards are difficult for courts to evaluate and difficult for plaintiffs to rebut, and their use in employment decisions should be viewed with suspicion. The Supreme Court has consistently recognized that disparate treatment potentially results from an employer’s practice of committing employment decisions to the subjective discretion of its supervisors.

The lack of objective criteria for taking an adverse action is always a red flag. And a railroad cannot escape FRSA liability by pointing to the self-serving testimony of managers explaining their discretionary evaluation of the evidence or how they applied inherently subjective criteria. This is especially so in cases where the railroad has no objective proof of “dishonesty” or a “false report” and instead relies on the subjective interpretations of managers.

Clear and Convincing Evidence Factors

How can a railroad demonstrate by clear and convincing evidence it would have taken the same adverse personnel action in the absence of the employee’s protected activity?  Three factors apply.  The ARB confirms that judges and juries must:

consider the combined effect of at least three factors applied flexibly on a case-by-case basis:

(1) how “clear” and “convincing” the independent significance is of the non-protected activity;

(2) the evidence that proves or disproves whether the employer “would have” taken the same adverse action; and

(3) the facts that would change in the “absence of” the protected activity.

If, after applying these factors, the judge or jury determines the railroad failed to prove its affirmative defense, then the railroad must be found liable under the FRSA.

For more information on Section 20109 of the Federal Rail Safety Act, go to the free Rail Whistleblower Library.

How to Protect Medical Absences Without FRSA Subsection (c)(2)

Posted in Federal Rail Safety Act

Every day, the operations of our nation’s railroads place at risk the safety of countless passengers, employees, drivers at crossings, contractors along the tracks, and the homes, schools, and work places in communities through which trains carry toxic and explosive materials. If a railroad worker is suffering from a medical condition rendering him fatigued, unable to be alert and attentive, or otherwise unable to perform his tasks safely, that worker is a safety hazard to himself, his coworkers, and the public.

And in fact every railroad has policies and rules mandating that employees only perform their tasks if they are fit, rested, attentive, and capable of performing their duties safely. Every railroad has variations on such rules as: “Safety is the most important factor in the performance of duties.” “In case of doubt, take the safe course.” Such rules are especially applicable to “safety-related railroad employees” whose work involves maintenance of way, train operations, maintenance of locomotives and cars, dispatching, signal work, and Hours of Service laws.

No one wants railroad workers to place the safety of themselves, their co-workers, and the public at risk by reporting to work in a medically unfit condition. Yet, in the absence of protection from discipline under their railroad’s attendance policy, that is precisely what workers are forced to do.

The purpose of the FRSA is to “promote safety in every area of railroad operations and reduce railroad related accidents and incidents.” And despite the 3rd Circuit’s misguided narrowing of FRSA subsection (c)(2)’s scope to work related injuries, the FRSA still protects employees who take the safe action of not working in a medically unfit condition.

Subsection (b)(1)(A) prohibits railroads from disciplining employees “for reporting, in good faith, a hazardous safety or security condition.” That protected activity of reporting a safety hazard is broad and unlimited. It is not limited to on-duty injuries, and applies to any work related safety hazard. Even the 3rd Circuit’s Bala Decision acknowledges subsection (b)(1)A) protects the reporting of any safety hazards related to railroad work.

The inability of an employee to safely perform his railroad duties is a safety hazard directly related to his work. A railroad employee who is medically unfit to perform his duties is a hazard to himself and others. And for such an impaired worker to go to work would violate the railroad’s own safety rules.

When employees mark off from work, railroads require them to report the reason. When an employee’s doctor confirms it would be a safety hazard for the employee to go to work, the employee’s act of reporting the reason for the absence is also the act of reporting a safety hazard. Indeed, the reporting of the reason for absence necessitates the reporting of the safety hazard. The two actions are one and the same, inextricably intertwined.

Under the FRSA, “the protected activity and the adverse action are inextricably intertwined if the basis for the adverse action cannot be explained without discussing the protected activity.” Here, the basis for the discipline (namely the absence from work) cannot be explained without discussing the protected activity of reporting a safety hazard. Why? Because the employee is reporting a safety hazard when he gives the reason for his absence.

The railroad will argue it only disciplines for the absence, not for reporting the safety hazard. But the employee will counter that, without the safety hazard identified by the treating doctor, there would have been no absence to discipline. In other words, in the absence of the safety hazard created by the employee’s impaired condition, there would have been no absence for the railroad to discipline.

In order to qualify for the protection of subsection (b)(1)(A), an employee: first, must have confirmation from his doctor that his medical condition or treatment (e.g., prescribing the use of a strong pain medication) renders him medically unfit to safely perform his job duties; and second, must report that safety hazard to the railroad as the reason for his marking off from work.

For the future guidance of employees, here is a check list for how to invoke subsection (b)(1)(A)’s protection from attendance absence discipline:

The employee should:

1. Explain to his doctor what his railroad job involves (e.g. working on or around heavy machinery)

2. Ask the doctor if his condition, treatment, or medications would place him, his coworkers, or the public at risk if he attempted to perform his job duties

3. If the doctor confirms in writing it would be unsafe for the employee to attempt to work, then

4. The employee contacts the railroad to report the reason he is marking off from work is the safety hazard confirmed by his doctor

It is a law of nature that the force of flowing water will not be denied. And just as the current in a stream will immediately flow around a foreign object thrown into its bed, the flow of medical note attendance discipline claims will continue under FRSA subsection (b)(1)(A) despite the 3rd Circuit’s Bala Decision.

Third Circuit Narrows Scope of FRSA Medical Note Protection

Posted in Federal Rail Safety Act

Federal Rail Safety Act Subsection c(2) prohibits railroads from disciplining employees “for following the orders or treatment plan of a treating physician.”  For the past six years, the U.S. Department of Labor has interpreted the scope of c(2) protection to include off duty injuries and medical conditions as well as on duty injuries: see the Administrative Review Board’s Bala v. PATH Decision.

However, in a case of first impression at the U.S. Court of Appeals level, the 3rd Circuit has ruled c(2)’s scope of protection is limited to work related injuries, and does not cover treating doctor notes for non-work medical conditions or off work injuries: PATH v. United States Department of Labor.  As for where the Bala case goes from here, and the implications of this ruling by the 3rd Circuit, stay tuned.