The law governing Federal Rail Safety Act retaliation complaints just got a whole lot clearer. In a precedent setting decision, a United States Circuit Court of Appeals has resoundingly confirmed the remedial purpose of the FRSA while clarifying the employee-friendly legal standards that apply to all FRSA complaints. As a result, Anthony Araujo v. New Jersey Transit Rail is mandatory reading for every railroad employee, union rep, manager, OSHA investigator, or attorney who needs to understand and apply the FRSA.
Here are just a few excerpts from this game-changing decision.
Remedial Protective Purpose
“The purpose of the FRSA is to promote safety in every area of railroad operations.”
“The rail industry has a long history of under reporting incidents and accidents, and railroad labor organizations have frequently complained that harassment of employees who report injuries is a common management practice.”
“The intent of the FRSA is to ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employer railroads” and “by amending the FRSA, Congress expressed an intent to be protective of plaintiff-employees.”
True Meaning of “Contributing Factor”
“The railroad employee need only show that his protected activity was a ‘contributing factor’ in the retaliatory discharge or discrimination, not the sole or even predominant cause. In other words, 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.” This test means an employee does NOT have to prove “his protected conduct was a significant, motivating, substantial, or predominant factor in an adverse personnel action.” This is consistent with the “in whole or in part” language used in the text of the FRSA statute, and means that if the protected activity played any part at all, even to the slightest degree, then it is a “contributing factor.”
No Need to Prove Retaliatory Motive
“A railroad employee need not demonstrate the existence of a retaliatory motive on the part of the supervisory employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the adverse personnel action.”
“We note the fact an employee need not ascribe a motive to the supervisor or manager greatly reduces the employee’s burden in making a prima facie case. However, we believe this reduced burden is appropriate in FRSA cases. We note that the legislative history shows that Congress was concerned that some railroad supervisors intimidated employees from reporting injuries to the FRA.”
Meaning of Disparate Treatment
Even if an injured employee violates a Rule by following a common practice, the railroad nevertheless violates the FRSA if it disciplines that injured employee after ignoring other employees who followed the same practice. For example, in Araujo, the Court noted “it was common practice for conductor-flagmen not to talk to the electrical linemen, and thus be unaware of the extent of the catenary power outages” but that “no other conductor-flagmen were disciplined for violating any rules” due to following that practice. “While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether the Railroad’s decision to file disciplinary charge was retaliatory.” Why? Because the key is whether the Railroad treated Araujo disparately. As the Circuit Court stressed, the fact Araujo was the only flagman involved in a fatal incident does not matter: “while Araujo may have been the only conductor-flagman to have been on duty during a fatal accident, it is not appropriate to put him in a class by himself, and not compare him to other conductor-flagmen who did not know about catenary outages but were not on duty during fatal accidents.”
A Railroad’s Burden of Proof Is Tough to Meet
The Railroad’s burden of proof is much higher than an employee’s. Once the employee proves his prima facie case by a mere preponderance of the evidence, “the burden shifts to the railroad to demonstrate by clear and convincing evidence the railroad would have taken the same unfavorable personnel action in the absence of the protected activity.” “Clear and convincing evidence” is just below “proof beyond a reasonable doubt” and way above a mere preponderance of the evidence. The Circuit Court noted that “for employers, this is a tough standard, and not by accident. . . . the standard is ‘tough’ because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry.”
McDonnell Douglas Burden Shifting Does NOT Apply to FRSA Cases
“The FRSA burden shifting is much more protective of plaintiff-employees than the McDonnell Douglas framework.”
“It is worth emphasizing that the FRSA’s burden-shifting framework is much easier for an employee to satisfy than the McDonnell Douglas standard.” In order “to emphasize the steep burden that railroads face under the FRSA,” the Circuit Court pointed out that it is not enough for a railroad to “articulate a legitimate, non-discriminatory reason for the adverse action.” So, what would be a valid defense under the McDonnell Douglas standard fails in a FRSA case.
More on the ramifications of this landmark decision later. But for now, hats off to my client Tony Araujo for having the courage to stand up and fight for his rights. All railroad employees should take heart knowing that Congress and now the federal courts have declared that the FRSA must be liberally interpreted and applied so as to fully protect all employees who report injuries. Here is the full text of the Araujo v. New Jersey Transit Rail landmark decision. For more information on the FRSA, go the free Rail Whistleblower Library.