Two recent district court decisions in the 2nd Circuit discuss what constitutes a “hazardous safety condition” under Section 20109(b)(1)(A) of the Federal Rail Safety Act, Ziparo v. CSX Transp. Inc. and Caria v. Metro North Commuter RR.

By now it is fairly well settled that an employee must have both a subjective and objective basis to believe a condition constitutes a hazard: an employee “must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation.” The objective reasonableness must be “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.”

Ziparo notes that actionable hazardous safety conditions “have generally been found to be physical conditions that are within the control of the rail carrier employer” and that “circumstances outside of the carrier’s control and non-work related conditions are not included.” This can be problematic when the hazard arises out of the employee’s own subjective reaction to conduct that is otherwise not safety-related. An important exception is an employee’s reaction to credible threats of physical violence by a co-worker. But as the Caria case illustrates, even then there still must be both a subjective and objective basis for the employee to believe he was reporting a safety condition at the time he made the report.

Here is the full decision in Ziparo and in Caria. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Some recent decisions by the ARB and the 6th, 7th, and 8th Circuits have muddled the causation standard for FRSA whistleblower retaliation cases. This past week’s United States Supreme Court’s landmark decision in Bostock v. Clayton County, 2020 U.S. LEXIS 3252 (June 15, 2020), illuminates the error of those decisions.

Here is the Title VII statutory language interpreted by the Supreme Court in Bostock:

it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his . . . employment, because of such individual’s [statutorily protected characteristic, such as sex]” [emphasis added]

And here is the FRSA Section 20109 statutory language to be interpreted:

a railroad “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done — to [one of the protected activities listed, including the good faith reporting a work-related injury or a safety hazard] ” 49 USC 20109 [emphasis added]

The operative causation language of those two statutes is the same. The Merriam Webster Dictionary definition of “due to” is: “as a result of, because of.” So both statutes use the same causation language: “because of” = “due to”, and “otherwise discriminate against any individual” = “or in any other way discriminate against an employee.”

Keeping this in mind, here are the levels of causation, from the strictest to the most forgiving:

Proximate Cause

Proximate cause is the strictest causation test:  “proximate cause. A cause that directly produces an event and without which the event would not have occurred.” Black’s Law Dictionary (7th ed. 1999). This “direct or proximate cause” test normally is applied in negligence based personal injury cases (other than FELA cases). And as the Bostock decision makes clear, the Supreme Court does not apply this test to employment discrimination retaliation claims.

But-For Causation:

Here is the Supreme Court’s description of but-for causation:

That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. . . . When it comes to Title VII [employment discrimination cases falling under the “because of” language], the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex [i.e. statutorily protected status] was one but-for cause of that decision, that is enough to trigger the law.

Bostock, pgs. *14-15, citations omitted. See also the Black’s Law Dictionary definition of a but-for cause: “The cause without which the event could not have occurred.” Black’s Law Dictionary (7th ed. 1999). The but-for test simply asks, “but for the existence of X, would Y have occurred?”  If the answer is yes, then factor X is a but-for cause.

The Supreme Court stressed that while an event may have many but-for causes, an employer is liable if just one of those but-causes was the employee’s protected status. That is because the

but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex [i.e. protected activity] was one but-for cause of that decision, that is enough to trigger the law.

Bostock at p.*15.

Motivating Factor Test:

In Bostock, the Supreme Court noted how in 1991 Congress supplemented Title VII

to allow a plaintiff to prevail merely by showing that a protected trait like sex was a ‘motivating factor’ in a defendant’s challenged employment practice. Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.

 Bostock at pgs.*15-16, citations omitted.

The Supreme Court went on to note that relief under Title VII can result from the application of either the “traditional but-for causation standard” or the more forgiving “motivating factor test.” Id.

 Contributory Factor Test:

This is the causation test in the AIR-21 whistleblower retaliation statute, 49 USC 42121(b)(2)(B)(iii), that is specifically incorporated by reference into the FRSA’s Section 20109 whistleblower protection statute. 49 USC 20109(d).

Congress itself took pains to confirm the meaning of the term “contributing factor” in the context of whistleblower actions: “The words ‘a contributing factor’ . . . mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”  135 Cong. Rec. 5033 (1989), quoted in Marano v. Dept. of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993).  In Marano, the Federal Circuit Court stressed that the “contributing factor” standard does not require proof the employer acted with a retaliatory motive:

though evidence of a retaliatory motive would still suffice to establish a violation of [Complainant’s] rights . . . a whistleblower need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action: “Regardless of the official’s motives, personnel actions against employees should quite [simply] not be based on protected activities such as whistleblowing.” S. Rep. No. 413, 100th Cong., 2d Sess. 16 (1989) (accompanying S. 508).

Marano, supra, at 1141.

FRSA Section 20109’s statutory causation language –namely, that all a railroad employee need prove is that the “discrimination is due, in whole or in part, to the employee’s” protected activity–is fully consistent with the contributory factor standard (“any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision”).

And it is worth noting Congress imported the FELA’s “in whole or in part” causation language, 45 U.S.C. 50, into the Section 20109 railroad whistleblower protection statute. In the railroad industry, “in whole or in part” is a term of art the Supreme Court has repeatedly confirmed means causation “in whole or in part, even to the slightest degree.” Rogers v. Missouri Pacific R. Co., 352 U.S. 500,506 (1957) (“Under this statute, the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”); CSX Transportation Inc. v. McBride,  564 U.S. 685,131 S. Ct. 2630, 2634 (2011).

So even if many factors are involved in a railroad’s decision to take the adverse action, the railroad still is liable if the employee’s protected activity played just one part, even to the slightest degree.

If a railroad employee satisfies the most stringent but-for test, it necessarily follows that he or she also satisfies the more forgiving motivation factor and contributory factor tests. But of course it is not necessary for a rail employee to satisfy the but-for or motivating tests–if he or she satisfies the more forgiving contributory factor test alone, the railroad is liable.

Clearing Up the Confusion

Recent decisions by the ARB and the 6th, 7th, and 8th Circuit Courts have sown confusion by overruling the long accepted “inextricably intertwined” and “chain of events” causation analyses and substituting the “direct or proximate cause” test instead. But the Supreme Court’s Bostock decision exposes the plain error of those decisions.

Inextricably Intertwined Test and Chain of Events Test

Numerous ARB and federal court decisions have applied the inextricably intertwined test, holding: “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.” And “if the protected activity and the adverse action are inextricably intertwined, there exists a presumptive inference of causation.” This is sometimes also referred to as a “chain of events” analysis.

A finding that an employee’s protected activity and the adverse action are inextricably intertwined by a chain of events is just one way of satisfying the but-for causation test described by the Supreme Court in Bostock. And such a finding also satisfies the even less restrictive contributory factor test.

But the ARB recently overturned its longstanding inextricably intertwined precedent and put the proximate cause test in its place. Thorstenson v. BNSF Railway Co, 2019 DOL Ad. Rev. Bd. LEXIS 100, *10-12, (ARB Nov. 25, 2019) (“In overturning our rule of ‘inextricably intertwined’ and ‘chain of events’ causation” the ARB ruled an employee “must explain how the protected activity is a proximate cause of the adverse action, not merely an initiating event.”); Yowell v. Fort Worth & Western RR, 2020 DOL Ad. Rev. Bd. LEXIS 18 (ARB Feb 5, 2020) (“the ARB no longer requires that ALJs apply the ‘inextricably intertwined’ or ‘chain of events’ analysis.”).

In so doing, the ARB followed decisions from the 6th, 7th, and 8th Circuits that erroneously replaced the FRSA’s contributory factor standard with proximate cause: Koziara v. BNSF Ry. Co., 840 F.3d 873, 877 (7th Cir. 2016) (dismissing case because the district court “failed to distinguish between causation and proximate causation.”); Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969-70 (8th Cir. 2017);  Heim v. BNSF Ry. Co., 849 F.3d 723, 727 (8th Cir. 2017) (expressly rejecting that an inextricably intertwined showing is “sufficient to establish the contributing factor element.”); BNSF Ry. v. U.S. Dep’t of Labor Admin. Review Bd. (Carter), 867 F.3d 942, 945-46 (8th Cir. 2017) (holding the “chain of events theory of causation is contrary to judicial precedent.”); Dakota, Minn. & E. R.R. Corp., v. U.S. Dep’t of Labor Admin. Review Bd. (Riley), 2020 U.S. App. LEXIS 2978, *11-14 (8th Cir. Jan. 30, 2020) (rejecting inextricably intertwined and chain of events analysis);  Lemon v. Norfolk Southern Ry., 2020 U.S. App. LEXIS 13927 (6th Cir. April 30, 2020) (rejecting chain of events analysis).

The Supreme Court’s decision in Bostock illuminates the plain error of all those decisions. The direct or proximate cause test simply has no place in FRSA causation analysis. The but-for causation test is less restrictive than the direct or proximate cause test, and if a railroad employee satisfies the but-for test the railroad is liable. However, that is not the only way for an employee to prevail. The employee also can prevail simply by satisfying the contributory factor test, the most forgiving test of all. And in the words of Congress, a contributory factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”

Bottom line? Use the Supreme Court’s clarification of the correct causation test to dispel the confusion once and for all. Use Bostock to make sure all judges understand why it is reversible error to apply the direct or proximate cause standard in FRSA whistleblower retaliation cases. Here is the full Supreme Court decision in Bostock v. Clayton County. And here is a Memo in Word format on the FRSA causation standard. For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.

 

We know the closer in time between a protected activity and an adverse action, the more powerful is the inference the protected activity was a contributing factor to the adverse action. Indeed, where the protected act and the retaliation occur in quick succession, the inference is overwhelming.

But the opposite is true: the further the distance in time between the protected act and the retaliatory action, the weaker is the causal relationship.

A recent decision from the 2d Circuit Court of Appeals lists the seven types of circumstantial evidence that can be used to prove the protected activity was a contributing factor in the adverse action. Sirois v. Long Island R.R. Temporal proximity is one, and the Sirois Court considers when the gap in time is too wide to support a causal inference.

Here is the bottom line. If the gap is days or a few weeks? Very helpful compelling evidence. Several months? Not a problem, still a plus to stress. But a year or more? Now you are in territory where you need other contributory factor evidence to buttress the causal inference. And if the gap is two years or more, that is simply too attenuated to allow an inference of a causal connection.

However, there is an exception. In its Summary and Discussion of its Final Rules for the FRSA, OSHA pointed out that:

An employee can satisfy the contributing factor standard if he or she shows that the railroad’s adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the retaliating manager, giving rise to the inference that it was a contributing factor in the adverse action. For example, years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the manager did not have the opportunity to retaliate until he was given responsibility for making personnel decisions.

So if you can show a manager was just waiting for an opportunity to retaliate to arise, and then pounced when it did, a gap of years does not matter.

Here is the full Decision in Sirois v. Long Island Rail Road. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

When BNSF track inspector Brandon Fresquez refused to falsify reports of track defect repairs, he was terminated for insubordination. In another example of the transformative power of the FRSA, a federal jury and judge have ordered BNSF Railway to pay Fresquez $1.74 million, including $800,000 in emotional distress, $250,000 in punitive damages, and $696,173 in back and front pay.

The Fresquez v. BNSF Railway Company Decision is notable for its discussion of when front pay is appropriate and how it is calculated.

Although reinstatement is the preferred remedy, front pay may be awarded by the judge when reinstatement is not a viable option. OSHA’s Whistleblower Investigation Manual lists the factors to consider when determining if an award of front pay 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.

Calculating the amount of front pay is necessarily speculative, but a railroad “may not take advantage of the fact that its unlawful conduct was the cause of the uncertainty.” The judge will consider the individualized circumstances of the dismissed employee (work life expectancy, salary, benefits, availability of other work opportunities, etc), and specify an end date for the front pay. In the case of Fresquez, the Judge balanced all the factors and found front pay for 10 years was appropriate.

BNSF argued that Fresquez could have mitigated his damages by seeking employment with other railroads. But the burden of proof to show an employee failed to mitigate his or her damages is on the railroad, and the District Judge ruled BNSF failed to prove “that another railroad will hire a candidate discharged from a Class I railroad for insubordination.”

Here is the full initial Decision in Fresquez v. BNSF Railway Company finding front pay is appropriate, and here is the subsequent Fresquez v. BNSF Railway Company Decision calculating the specific amounts of back and front pay. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

A recent decision from the U.S. Department of Labor’s Administrative Review Board holds, in a case of first impression, that the National Transit Systems Security Act (NTSSA), 6 U.S.C. Section 1142, “provides subway employees protection against retaliation for raising concerns relating to workplace safety, as well as public safety.”

In Janathan Harte v. Metropolitan Transportation Authority et al., the New York City subway system (MTA New York City Transit Authority) argued the NTSSA does not apply to the safety of subway employee work places, only to public spaces used by passengers.

The ARB soundly rejected that argument, confirming for the first time that subway workers who complain of safety hazards in their own workplace are protected from any resulting retaliation. Hopefully this will encourage more subway workers to speak up about hazardous safety conditions at whatever locations they work.

Here is the full decision of Janathan Harte v. Metropolitan Transportation Authority et al. For more on the whistleblower rights of subway and railroad workers, go to the free Rail Whistleblower Library.

The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and a railroad violates Section 20109 if an employee’s untimely reporting contributed “in whole or in part” to the disciplinary action:

a railroad employer can, in fact, be held liable under the FRSA if it disciplines an employee based on its honestly held belief that the employee engaged in misconduct or committed a rules violation. Liability will still exist notwithstanding such a belief if the railroad’s retaliatory motive also played a contributing role in the decision and if the railroad fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected report.

The Circuit Court went on the underscore there is no inconsistency between a railroad being motivated in part by an honestly held belief the employee violated a rule and in part by a motive to retaliate against the employee for engaging in a FRSA protected activity.

The practical effect of this is to negate a railroad’s ability to discipline an employee for the “late” or “untimely” reporting of injuries. And in fact other federal courts have voided “late reporting” discipline based on a railroad’s rule requiring the “prompt” or “immediate” or “before end of shift” reporting of injuries. This is because the charge that an employee’s injury report was “late” is, while true, inextricably intertwined with the protected act of reporting the injury. In other words, the late reporting discipline cannot be explained without discussing the employee’s protected activity of reporting the injury. See, e.g., Smith-Bunge v. Wisconsin Central, Ltd., and Williams v. Illinois Central RR.

Here is the full Blackorby II decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how to finesse that dilemma:

We note it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy company or corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.

See also the ARB’s decision in Leiva v. Union Pacific Railroad Company. The expungement of illegal discipline is a vitally important make whole remedy, and such fine tuning may be necessary to ensure it functions as intended.

For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

 

Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:

A wrongfully discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such position.

BNSF submitted no evidence of available comparable jobs for any of the times during which Brough was not working . . . BNSF instead relied solely on Brough’s admission that he did not look for a comparable job during these times. . . . Because BNSF failed to meet its burden of proof, we affirm the ALJ’s back pay award.

So a railroad cannot just rely on an employee’s admission that he or she did not apply for comparable jobs. The burden is on the railroad to prove there were comparable jobs reasonably available to the employee during the lost wage time period. Failure to present such proof is fatal to the railroad’s “failure to mitigate” affirmative defense.

Here is the full Brough decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

 

The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. Union Pacific Railroad Company, a federal judge rejected a railroad’s attempt to use a disciplinary waiver to bar the employee’s FRSA complaint:

There is no canon against using common sense in construing laws as saying what they obviously mean. The statute is clear that an employee may not waive by agreement the rights and remedies provided by Section 20109. . . . waivers under a collective bargaining agreement, signed by an employee for the conduct which forms the base of his FRSA complaint, do not bar an FRSA claim.

The judge went on to note that such disciplinary leniency agreements are not formal settlements and do not in any way affect an employee’s rights under the FRSA.

All employees should be aware that signing such waivers in order to minimize the amount of unfair discipline assessed against them does not negate their right to bring a FRSA complaint. Here is the complete Montes decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Answer: Yes, it can be, according to the United States Department of Labor. Joshua Cleveland v. Long Island Rail Road (SDNY) is a Federal Rail Safety Act case claiming the Railroad retaliated against an employee after he filed a FELA lawsuit. The United States Attorney filed a Statement of Interest on behalf of the DOL confirming three scenarios when a FELA lawsuit can be FRSA protected activity:

First, an employee’s FELA lawsuit can notify the railroad of the work-related personal injury under FRSA subsection (a)(4) if the employee has not already reported the injury to the railroad. . . .

Second, if an employee has already reported the injury to the railroad prior to filing a FELA lawsuit, the employee’s FELA lawsuit can be protected activity if it provides the railroad with more specific notification of the injury. . . if the FELA lawsuit provides more specific information about the injury (such as that the effects of the injury are much more serious than initially reported) or informs a previously unaware railroad decision maker of the injury, then the FELA lawsuit can “notify or attempt to notify” the railroad of the injury under FRSA subsection (a)(4).

Finally, an employee’s testimony during a FELA lawsuit of allegedly unknown and undisclosed details of an injury can constitute more specific notification of the nature and extent of the injury.

This is consistent with the position of the U.S. DOL Administrative Review Board, which holds that

a FELA lawsuit falls under Section 20109(a)(4) only if the lawsuit provides an employer with “more specific information” about the employee’s injury than the employee had previously reported. Section 20109(a)(4) applies, in other words, only if the FELA lawsuit expands the employer’s knowledge of the injury beyond the information in the employee’s initial report (by, for example, providing new details about the extent, severity or causes of the injury).

And that is the standard recently applied by a federal district judge in deciding if a FELA lawsuit qualified as protected activity under subsection (a)(4), Cleveland v. Long Island R.R. Co.

Of course, the contributing factor element and the clear and convincing defense still apply. But all attorneys should be aware of when a client’s FELA lawsuit or testimony qualifies as FRSA protected activity. Here is the U.S. DOL’s Statement of Interest, and here is the full decision in Cleveland v. Long Island R.R. Co.

For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.