Strange as it sounds, a railroad manager can have a valid reason for taking disciplinary action against an employee and still be in violation of the FRSA. How? Because the employee’s protected activity in reporting an injury,raising a safety concern, or following a treating doctor’s orders was a “contributing factor” to the action.
The FRSA requires that an employee prove his or her protected activity was a “contributing factor” to the adverse discipline or discrimination. A contributing factor is any factor which alone or in combination with other factors tends to affect in any way the outcome of the decision. Here is OSHA’s explanation in the FRSA regulations:
In proving that protected activity [such as reporting an injury, raising a safety concern, or following a treating doctor’s orders] was a contributing factor in the adverse action, an employee need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because an employee alternatively can prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct, and that another reason was the employee’s protected activity.
29 CFR Part 1982. What does that mean in plain English? A railroad can have a valid reason for firing an employee and still violate the FRSA if the discipline also is based in part on the employee’s protected activity of raising a safety concern, reporting an injury, or following a treating doctor’s orders.
So here’s the question: if the employee had not engaged in the protected activity, would the discipline still have occurred? If the answer is no, then the employee’s protected activity is a contributing factor and the railroad is in violation of the FRSA even if it can articulate another reason for the discipline. For more on the FRSA, go to the free Rail Whistleblower Library.