In a rare en banc decision, the U.S. Department of Labor’s Administrative Review Board explains why the Federal Rail Safety Act’s distinct two step burden of proof process must never be merged into one. Powers v. Union Pacific Railroad Company also is significant for reminding us that the subjective evaluations of railroad managers carry virtually no weight in the FRSA context.
Here are the major take aways from this important decision.
Different Burdens of Proof
All a rail worker need prove is that his FRSA protected activity (e.g., reporting an injury or a safety hazard) was a “contributing factor” in the adverse action taken by the railroad. The “preponderance of evidence” standard applies, meaning if the weight of the evidence tips the scales of justice ever so slightly in favor of the worker, then he has carried his burden of proof by a preponderance of the evidence.
The burden of proof then shifts to the railroad, which can escape FRSA liability only if it proves by “clear and convincing evidence” it would have taken the same adverse action in the absence of the employee’s protected activity. “Clear and convincing evidence” is a much higher standard, requiring the railroad to prove it is “reasonably certain” it would have taken the exact same adverse action if the employee had not engaged in the protected activity.
In Powers, the ARB underscores that these two steps can not and must not be merged: a railroad’s clear and convincing non-retaliatory reasons for its adverse action “may not be weighed against an employee’s showing of contributory factor.” In other words, the first step of the process must not be contaminated by the second step. The employee’s contributing factor proof cannot be offset or undercut by the railroad’s proof it would have taken the adverse action in the absence of the protected activity, when such proof is not relevant to the contributing factor element. As seen below, examples of evidence that is not relevant to the contributory factor element include the subjective evaluations of railroad managers and their lack of a retaliatory motive.
Contributing Factor Standard
The contributing factor standard is notably lenient. In the words of the ARB:
The “contributing factor” standard was employed to remove any requirement on a whistleblower to prove that protected activity was a ‘”significant’, ‘motivating’, ‘substantial’, or ‘predominant’ factor in a personnel action in order to overturn that action.” Consequently, “[a] complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent’s reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant’s protected’ activity.”
This means a railroad can have a legitimate reason for taking the adverse action and still violate the FRSA if the employee’s protected activity also was a contributing factor. And in situations where the railroad’s basis for the adverse action is intertwined with the employee’s protected act (e.g., an injury report is deemed “false” or “dishonest”), the ARB confirmed it is the railroad who “bears the risk” the protected act and the reason for the adverse action “cannot be separated.”
And the railroad is liable under the FRSA even when there is no proof of a retaliatory motive by the managers involved:
Since complainant’s burden of proof does not require a showing of retaliatory motive by the employer, evidence that the employer lacked a retaliatory motive for the adverse action taken does not rebut complainant’s evidence supporting contributing factor.
Management’s Subjective Evaluations Carry Little Weight
The ARB stressed an important but often overlooked point, namely that a railroad manager’s use of subjective criteria as a basis for discipline carries no virtually weight in the FRSA context:
The relevancy of subjective witness statements for purposes of analyzing complainant’s showing of contributing factor, as a general matter, is highly questionable because subjective criteria can be a ready vehicle for discrimination. Subjective standards are difficult for courts to evaluate and difficult for plaintiffs to rebut, and their use in employment decisions should be viewed with suspicion. The Supreme Court has consistently recognized that disparate treatment potentially results from an employer’s practice of committing employment decisions to the subjective discretion of its supervisors.
The lack of objective criteria for taking an adverse action is always a red flag. And a railroad cannot escape FRSA liability by pointing to the self-serving testimony of managers explaining their discretionary evaluation of the evidence or how they applied inherently subjective criteria. This is especially so in cases where the railroad has no objective proof of “dishonesty” or a “false report” and instead relies on the subjective interpretations of managers.
Clear and Convincing Evidence Factors
How can a railroad demonstrate by clear and convincing evidence it would have taken the same adverse personnel action in the absence of the employee’s protected activity? Three factors apply. The ARB confirms that judges and juries must:
consider the combined effect of at least three factors applied flexibly on a case-by-case basis:
(1) how “clear” and “convincing” the independent significance is of the non-protected activity;
(2) the evidence that proves or disproves whether the employer “would have” taken the same adverse action; and
(3) the facts that would change in the “absence of” the protected activity.
If, after applying these factors, the judge or jury determines the railroad failed to prove its affirmative defense, then the railroad must be found liable under the FRSA.
For more information on Section 20109 of the Federal Rail Safety Act, go to the free Rail Whistleblower Library.