When a rail worker proves that his or her FRSA protected activity was a contributing factor in the adverse personnel action, the railroad may nevertheless avoid liability if it proves by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. The burden of proof is on the railroad to prove that the unfavorable personnel action it imposed was the result of events or decisions independent of the employee’s participation in FRSA protected activity.

But what is such “clear and convincing evidence”? The Administrative Review Board provides some clarity in the case of Lancaster v. Norfolk Southern Railway:

“Clear” evidence means the employer has presented an unambiguous explanation for the adverse action in question. “Convincing” evidence is that which demonstrates a proposed fact is “highly probable.” Clear and convincing evidence “denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain.”

Circumstantial evidence can be used to prove what an employer “would have done” in its efforts to prove its affirmative defense. The circumstantial evidence it presents can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee’s work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.

As such, a railroad’s failure to offer credible, non-discriminatory reasons for its conduct is fatal to a “clear and convincing evidence” defense. An effective way for an employee to cripple the railroad’s defense is to establish that other similarly situated workers who have not engaged in FRSA protected activity were not subjected to disciplinary charges or did not suffer the same severity of discipline.

Here is the ARB’s full decision in Lancaster v. Norfolk Southern Railway, and here is a link to the post on the ALJ’s Lancaster decision.  For more on the rights of rail workers, go to the free Rail Whistleblower Library.

Under the FRSA, it is protected activity to report a “hazardous safety condition.” Whether a worker’s own illness or personal  impairment is such a hazardous condition has been a matter of dispute. But now the Administrative Review Board confirms that a rail worker’s illness can constitute a hazardous condition, the reporting of which cannot be used to discipline the worker. The case is Ingrodi v. CSX Transportation, Inc., and builds on the ARB’s earlier decision in Cieslicki v. Soo Line Railroad Co. ARB No. 2019-0065 (ARB June 4, 2020).

In Cieslicki, the worker legally consumed alcohol before being unexpectedly called into duty. When he explained he had consumed alcohol and therefore could not work, the Railroad terminated his employment. The ARB held that a “hazardous safety or security condition” may result from an employee working in an impaired or diminished physical state, and that the FRSA “does not require that a condition be work-related or state that the condition cannot relate to an employee’s physical condition.” The ARB explained the phrase “hazardous safety or security condition” is broad, and does not require that a condition be “work-related,” limit protection to conditions related exclusively to tracks or equipment, or state that the condition cannot relate to an employee’s personal physical condition. The ARB stressed the primary purpose of the FRSA’s whistleblower protection is to promote safety, and the goal of ensuring safety applies equally to whether a hazardous condition arises from equipment or from the impaired or diminished physical condition of the person operating it.

In Ingrodi, the worker was terminated after calling off sick due to a personal, non work-related illness. The ARB held:

We reiterate our conclusion in Cieslicki that Section 20109(b)(1) of the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Consistent with this conclusion, we hold that an employee impaired by an illness can create a hazardous safety or security condition under the FRSA. Depending on the circumstances of the particular case, a worker impaired by illness, like a worker impaired by alcohol or like a faulty or unsafe piece of equipment or line of track, could present a danger or threat of serious harm or injury to the worker, to his or her colleagues, and to the public. To hold otherwise could implicitly incentivize impaired employees to work despite the risk of causing great harm or injury to themselves or those around them, for fear of discipline. In light of Section 20109(b)(1)’s broad and general language, the over arching purposes of the FRSA, and our precedent in the same and analogous contexts, we hold that reporting, or refusing to work because of, a personal, non-work related illness may constitute protected activity under Section 20109(b)(1) of the FRSA.

The ARB’s rulings are binding on OSHA and Administrative Law Judges. However, it is important to keep two points in mind. First, when declining to work due to a personal illness or medical condition, it is critical the worker tell the railroad that as a result he or she is unable to safely perform the duties of the job (ideally with a doctor’s note in support). Second, the ARB noted an impaired worker still may be disciplined if the impairment is the result of conduct that is illegal or in violation of FRA regulations.

Here are the full decisions in Ingrodi v. CSX Transportation Inc. and Cieslicki v. Soo Line Railroad Co. For more on the rights of rail workers, see the free Rail Whistleblower Library.

A district court decision in Fresquez v. BNSF Ry. Co. awarding $540,000 in FRSA attorneys’ fees illustrates the factors involved.

Even when it is reasonable for a railroad worker to retain an out-of-state attorney who specializes in railroad law, the hourly rate awarded still must reflect the prevailing rates in the locus of the trial: such an out-of-state attorney

“must provide evidence of the prevailing market rate for similar service by lawyers of reasonably comparable skill, experience, and reputation in the relevant community.”

Normally this is done by providing Affidavits from comparable attorneys who practice employment law in the relevant geographical location.

However, in the absence of such evidence, the district court

“may, in its discretion, use other relevant factors, including its own knowledge, to establish the rate.”

Such factors may include

“the national rates for experienced FRSA and FELA lawyers, plaintiff’s counsel’s experience, and the level of competence required to successfully litigate the FRSA claim.”

Ideally, FRSA practitioners can produce the Affidavits of comparable local attorneys while also arguing for the application of a higher rate based on the national rates charged by experienced FRSA lawyers.

The hours must be reasonable and well-documented. Time spent in travel is compensable at half the hourly rate. Time spent drafting the attorney fee petition is compensable at the full hourly rate.

Here is the full attorney fee decision in Fresquez v. BNSF Railway. For more on the rights of railroad workers, go to the free Rail Whistleblower Library.

When exactly does the 180-day window for filing a FRSA complaint with OSHA open and close? And when can equitable tolling keep that window from shutting?

In Privler v. CSX Transp. Inc. the Administrative Review Board spells it out:

An FRSA complaint must be filed within 180 days after an alleged violation of the FRSA occurred. The statutory limitations period begins to run when a worker “has final, definitive, and unequivocal knowledge of a discrete adverse act.” The date of filing will be considered as “the date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third part commercial carrier, or in person filing at an OSHA office.”

Since Privler’s OSHA Complaint was filed 182 days after the Railroad terminated his employment, it was untimely. That is fatal unless the doctrine of equitable tolling applies, and the ARB spells out the four principal situations in which equitable modification of filing deadlines may apply:

(1) the railroad has actively misled the employee regarding the cause of action;

(2) the employee has in some extraordinary way been prevented from filing his or her action;

(3) the worker has raised the precise statutory claim in issue but has done so in the wrong forum; and

(4) the railroad’s own actions or omissions have lulled the employee into foregoing prompt attempts to vindicate his or her rights.

In the railroad industry, typically there is a series of actions culminating in the imposition of discipline: a notice of disciplinary charge, a notice of disciplinary hearing, the hearing itself, and the post-hearing decision to actually impose a concrete amount of discipline. Each action is arguably adverse and opens up its own 180-day window for filing a FRSA complaint with OSHA. But best practice is to file with OSHA within 180 days of the first arguably adverse action.

Filing within 180 days of the railroad’s post-hearing decision to actually impose a concrete amount of discipline is sufficient. But waiting for the conclusion of the usually lengthy internal and external disciplinary appeal process is not advised, as it only invites the filing of a motion battling over when the employee had or should have had “final, definitive , and unequivocal knowledge of a discrete adverse act.”

Here is the full attorney fee decision in Privler v. CSX. For more on the rights of railroad workers, go to the free Rail Whistleblower Library.

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.