The burden of proof applicable to a Federal Rail Safety Act whistleblower protection case is markedly different from a Title VII discrimination case. And much more favorable to the employee.
Title VII cases have a three step burden of proof: the employee establishes a prima facie case, the employer raises a non-discriminatory reason, and then the employee has to prove the stated reason was a pretext. All by a preponderance of the evidence standard.
But the FRSA has the same burden of proof as AIR21, the whistleblower statute that covers airline employees. And only two steps apply: (1) if the railroad worker proves by a preponderance of the evidence that his protected activity was a “contributing factor” in the railroad’s adverse action, then (2) the burden shifts to the railroad to prove by “clear and convincing evidence” that it would have taken the same adverse action even in the absence of the worker’s protected activity. And “clear and convincing evidence” means something is reasonably certain, a much higher standard of proof than a mere “more likely than not” preponderance of the evidence.
And under the FRSA’s “contributing factor” standard, an employee does not have to prove that the railroad’s stated reason is a pretext. In the words of OSHA, a railroad worker “need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because the worker 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 worker’s protected activity.” OSHA’s Final Interim Rule Summary of Section 1982.104, 29 CFR 1982.104. That is because a “contributing factor” is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”
So don’t let anyone confuse the apples of Title VII with the oranges of FRSA.