The federal courts and Administrative Review Board now are moving in lock step regarding the employee friendly legal standards applicable to FRSA complaints. Building on the landmark Araujo v. New Jersey Transit Rail 708 F.3d 152 (3rd Cir. 2013) federal circuit court decision, the ARB in Hutton v. Union Pacific Railroad Company confirms that the FRSA's "contributing factor" element is satisfied whenever the chain of events leading to an employee's discipline would not have begun without the employee reporting an injury. In other words, if the discipline is based on an investigation that was begun only as a result of the employee reporting an injury, then the reporting of the injury constitutes a "contributing factor."
In Hutton, the chain of events that led to the employee's termination would not have commenced if the employee had not filed an injury report. The ARB ruled that fact alone is enough to satisfy the "contributing factor" element. And in so doing, the ARB also underscored that no proof of retaliatory animus is required in FRSA cases, and that a railroad's "legitimate business reason" is not a defense. Here are some excerpts from this important ARB decision:
Although the ALJ stated that the chain of events leading to Hutton’s termination would likely never have occurred had he not reported his injury, the ALJ determined that this was not the test for contributory factor under the FRSA. This was error. The ARB has repeatedly ruled that under certain circumstances a chain of events may substantiate a finding of contributory factor. Compounding his error, the ALJ determined that no witness demonstrated “animosity” against Hutton, suggesting that Hutton was required to prove retaliatory animus or motive. Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way – even as a necessary link in a chain of events leading to adverse activity.
The circumstances presented here are analogous to the facts in DeFrancesco v. Union RR Co., in which we considered the application of the FRSA to the discharge of an employee who reported a work-related injury. In DeFrancesco, the employee reported his injury, which led to an investigation into his disciplinary history and prior injury reports, and the investigation resulted in the employee’s suspension. . . . we held that if DeFrancesco had not reported his injury, the company would not have conducted the investigation that resulted in the discipline. We concluded that DeFrancesco’s injury report was a contributing factor in his suspension, and we remanded the case to the ALJ to determine whether the respondent could show by clear and convincing evidence that it would have suspended DeFrancesco in the absence of his protected activity
The ALJ appeared to base his dismissal solely on a finding that Hutton committed a dismissible offense (failure to attend investigative hearing), similar to the legitimate business reason burden of proof analysis that does not apply to FRSA whistleblower cases. Under the FRSA whistleblower statute, the causation question is not whether a respondent had good reasons for its adverse action, but whether the prohibited discrimination was a contributing factor “which, alone or in connection with other factors, tends to affect in any way” the decision to take an adverse action.
Bottom line is, no matter what the forum, railroads cannot escape the application of the FRSA's extremely employee friendly legal standards.