Railroads are running out of defenses to the Federal Rail Safety Act. Their initial “election of remedies” gambit is dead and buried. Their second line of defense–charging employees who report injuries with “falsification and dishonesty”–has been obliterated by the “inextricably intertwined” principle upheld by judges and appellate courts. In desperation, railroads have been forced to fall back on the “decision maker ignorance” defense. But that defense du jour has been shredded by the “cat’s paw” principle recognized by the Supreme Court and ARB.

And now comes two federal district court decisions further undermining the “ignorant decision maker” and “falsification” defenses.

Ignorant Decision Maker

In the “ignorant decision maker” defense, the railroad claims the “final” or “sole” decision maker did not know the employee had reported an injury or safety hazard or was following a doctor’s orders. But the “cat’s paw” principle applies, so even if just one of the group of individuals involved in the entire disciplinary process was aware of the protected activity, that is sufficient to establish FRSA liability. Rudolph v. National Railroad Passenger Corporation.

Now there is another way to undercut that defense: even when there is no direct evidence showing at least one of the managers involved in the disciplinary process knew of the protected activity, close temporal proximity alone is sufficient to establish FRSA liability.

In Robin Young v. CSX Transportation, the CSX Legal and Labor Relations Departments decided to allow former dispatcher Robin Young to exercise his trackman seniority and return to work as a trackman. But within a week after CSX’s Headquarters was served with a copy of Robin Young’s FRSA Complaint, CSX reversed its decision and told him to stop working as a trackman. CSX argued it was not liable because there was no documentary proof that the “sole decision maker” was aware of the FRSA Complaint.

The federal judge rejected that defense, holding that temporal proximity alone is sufficient to overcome the “ignorant decision maker” defense. Temporal proximity refers to the closeness in time between the protected activity and the decision to take the adverse action, and that alone is enough to infer the railroad knew about the protected activity and that it was a contributing factor in the adverse action.


Jeffrey Davis v. Union Pacific Railroad Company involved an employee who, for one month after turning his foot on unstable ballast, maintained his pain was not work related but rather gout. Then, after a doctor diagnosed a severe ankle sprain, he did report it as work-related, and the Railroad fired him for dishonesty and misrepresentation of facts.

Union Pacific argued the employee’s injury report was not protected by the FRSA because it was not made “in good faith.” But the federal court rejected that defense, confirming the focus is only on the employee’s good faith belief, not on the railroad’s perception:

If the employee actually believed, at the time he reported the injury, that it was work-related, then his activities were in good faith and were protected under the FRSA. … Whether the railroad believed the employee was acting in good faith is irrelevant.

This is consistent with the Worcester v. Springfield Terminal Railway Company federal court decision holding that “good faith” is satisfied when the employee “held an honest, subjective belief that there was a hazardous safety or security condition.”

To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.