It’s a common scenario: employee reports injury; railroad conducts investigation of the injury; railroad declares the employee’s statements about the injury somehow to be “inconsistent” or “misleading” or “false” and fires him for dishonesty. Two recent decisions explain why that is a violation of the Federal Rail Safety Act.
In Henderson v. Wheeling & Lake Erie Railway, the Administrative Review Board clarifies the correct “contributing cause” analysis in such FRSA discipline cases, stressing that causation is presumed in situations where the employee’s protected activity and the adverse action are “inextricably intertwined.” When an employee is disciplined based on information he gives during his injury investigation, the ARB explained that the employee’s disclosure of his injury is “inextricably intertwined with the investigations that resulted in his discharge because the content of those disclosures gave the employer the reasons for its personnel actions against the employee.”
In other words, if the employee “had not reported his injury, the railroad would not have conducted the investigation that resulted in the discipline.” Thus the reporting of the injury constitutes a contributing factor, and the railroad is liable unless it can prove “by clear and convincing evidence” it would have disciplined the employee if the employee had not reported the injury. This reinforces the ARB’s precedent in DeFrancesco v. Union R.R. Co. Here is the full text of Henderson v. Wheeling & Lake Erie Railway.
A recent ALJ decision also applies this principle. In Cain v. BNSF, Christopher Cain was terminated for “late reporting” and “misrepresenting” a work injury. The ALJ stressed “I find that the public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate.” Here is full text of Cain v. BNSF.
The take away? OSHA Whistleblower investigators do not view the facts through the lens of a FELA juror forced to decide between competing versions of how an injury occurred or its medical effect. If a railroad bases its decision to discipline an injured employee on statements it elicited from the employee during the injury investigation, that alone is enough for OSHA to find the reporting of the injury was a “contributing factor.” The railroad then can escape FRSA liability only if it clears the extremely high hurdle of proving it would have imposed the same discipline on the employee if he had not reported an injury. For more on the FRSA, go to the free Rail Whistleblower Library.