The 8th Circuit has issued a spate of FRSA decisions falling outside the main stream of other Circuits. It is important to put them in perspective.

Araujo v. Kuduk: a distinction without a difference

Citing the Congressional Record and the leading whistleblower decision in Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993), the 3rd Circuit in Araujo explained why the contributing factor standard did not require a railroad employee to prove the manager taking the adverse action had a retaliatory motive. Araujo v. NJT Rail Operations, 708 F.3d 152 (3rd Cir 2013). The 8th Circuit is trying to draw a distinction between itself and the 3rd Circuit, but it is a distinction without a difference.

In Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir 2014), the 8th Circuit noted:

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.

The use of the phrase “intentional retaliation” is simply a maladroit way of saying the managers who took the adverse action must have had some knowledge of the employee’s protected activity. Which has always been the case. Knowledge of the protected activity = intentional retaliation. The more accurate phrasing actually is: “intentional retaliation prompted by some knowledge of the employee’s protected activity.” If the supervisors taking the adverse action had no knowledge of the employee’s protected activity, then the  contributing factor element is not satisfied. But that is nothing new or different. The 8th Circuit’s “intentional retaliation” comment is a distinction without a difference.

In Kuduk the 8th Circuit also took a gratuitous swipe at the 3rd Circuit’s Araujo decision by footnoting the following dicta:

In our view, the Araujo panel may have improperly relied on Marano . . . for its no-need-to-show-motive conclusions because the court in Marano was construing a federal employee whistleblower statute that required only an ultimate showing of causation in fact (‘because of’), not discrimination.

But that dicta is simply wrong. In fact Marano interpreted and applied the “contributing factor” burden of proof standard, which is the very same standard cited in AIR-21 and incorporated by reference into FRSA Section 20109. The Administrative Review Board has stated many times that the “contributing factor” standard is the standard elucidated in Marano, see e.g., Palmer v. Canadian National Railway, ARB No. 16-035,  ALJ No. 2014-FRS-154 (ARB Sept. 30, 2016), as have other Circuits, see e.g., Halliburton v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014).

The 8th Circuit continues to cite Kuduk’s erroneous dicta. Blackorby v. BNSF Ry. Co., 849 F.3d 716 (8th Cir. 2017), and Heim v. BNSF Ry. Co., 849 F.3d 723 (8th Cir. 2017). But that is no reason for other courts to do so. Anytime a railroad cites Kuduk, make sure the court understands the phrase “intentional retaliation” is simply drawing a distinction without a difference.

Laches Dicta

To prevail on a common law defense of laches, a defendant must prove the plaintiff unreasonably and inexcusably delayed filing the lawsuit, resulting in actual prejudice to the defendant. In pure dicta, and without benefit of any briefing or argument, two members of an 8th Circuit panel recently engaged in sua sponte speculation about the applicability of the common law principle of laches to Section 20109 cases. Gunderson v. BNSF Ry. Co., 2017 U.S. App. LEXIS 4258 (8th Cir. 2017). While such uninformed speculation has no precedential effect, in deciding when to opt out of the DOL and file a FRSA complaint in federal district court, attorneys representing FRSA clients should be mindful of the laches principle.

Scope of Hazardous Safety Conditions

In its PATH (Bala) decision, the 3rd Circuit commented in dicta that subsection (b)(1)(A)’s phrase “hazardous safety condition” is limited to conditions related to railroad work:  “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation.” The 3rd Circuit did NOT say (b)(1)(A) is limited to work-related injury conditions. On the contrary, the Circuit Court was pointing out subsection (b)(1)(A) protects the reporting of any hazardous condition that is related to an employee’s railroad work. However, the district court in Murdock v. CSX Transp. Inc., 2017 U.S. Dist. LEXIS 46835 (N.D. Ohio 2017), entirely missed that point, erroneously merging (b)(1)(A)’s reporting of a hazardous condition with a (b)(2)(B) refusal to work. The 3rd Circuit’s PATH decision did no such thing.

For more information on the FRSA Section 20109 whistleblower statute, go to the free Rail Whistleblower Library.