Two recent decisions, one from a federal district court and the other from the Administrative Review Board, reject several of the defenses railroads have raised against Federal Rail Safety Act whistleblower retaliation cases.
Adding a FRSA Count to an FELA Complaint is Allowed
In Battenfield v BNSF Railway Company, Burlington Northern failed to prevent an injured employee from amending his FELA complaint to add a FRSA retaliation count. The Railroad raised the discredited argument that the worker’s use of his CBA procedures to challenge his termination constituted an "election of remedies" that precluded a FRSA claim. The federal district judge rejected that argument, relying on the ARB’s Mercier and Koger decision and the related decision by the District Court in Norfolk S. Ry. Co. v. Solis.
The Solis decision drew an important distinction between the remedies sought under the FRSA and a CBA: "In Koger’s case the unlawful act alleged under the FRSA was a dismissal in retaliation for reporting his injury. The unlawful act alleged in his RLA Section 3 arbitration was dismissal in violation of his rights under the CBA concerning his responsibility for the accident." This critical distinction highlights the fallacy inherent in the argument that a CBA proceeding precludes a FRSA complaint.
An Ultimate Decision Maker’s Lack of Knowledge of FRSA Protected Activity Is No Defense
Railroad’s often try to argue that because the manager who made the ultimate decision to discipline was not aware of the employee’s FRSA protected activity, there can be no violation of the FRSA. In Rudolph v. National Railroad Passenger Corporation, the ARB makes it clear that "defense" is a dead loser:
to focus on the knowledge possessed by the final responsible decision-maker constitutes error as a matter of law. Proof that an employee’s protected activity contributed to the adverse action does not necessarily rest on the decision-maker’s knowledge alone. It may be established through a wide range of circumstantial evidence, including the acts or knowledge of a combination of individuals involved in the decision-making process. Proof of a contributing factor may be established by evidence demonstrating "that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee’s protected activity."
This includes not just lower level supervisors, but also the attorneys within a railroad’s own legal department. In Rudolph, the deciding manager’s "decisions and action were based on the advice of attorneys within Amtrak’s legal department, who surely were aware of Rudolph’s protected activities." Thus the ARB held that the legal department’s "knowledge is imputed to [the deciding manager]."
Intervening Events Do Not Necessarily Break FRSA Causal Connection
In Rudolph, the ARB confirmed that:
an "intervening event" does not necessarily break a causal connection between protected activity and adverse action simply because the intervening event occurred after the protected activity. The employee’s burden of proving contributory causation will be met even if the railroad also had a legitimate reason for the unfavorable employment action against the employee. Again, proof of causation for "contributing factor" is not a demanding standard. The employee need not prove that his or her protected activity was the only or the most significant reason for the unfavorable personnel action. It is enough that an employee establish that the protected activity in combination with other factors affected in any way the adverse action at issue.
Thus, the only way an intervening event can help a railroad is if the railroad proves by clear and convincing evidence that, due to the intervening events, it would have taken the same adverse action even if the employee had not engaged in the protected activity.
And so it goes. The mannequin dummies the railroads keep propping up as defenses against the FRSA just keep getting knocked flat by judicial decisions.