When does a sentence not mean what it seems to say? When it is quoted out of context. And that is certainly the case with one sentence in the 8th Circuit’s Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), decision railroad attorneys love to rip out of context and wave at judges as if it somehow changes three decades of whistleblower law.
Here is the sentence: “But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” This is just another way of saying that, in order to satisfy the “contributing factor” element, there must be some direct or circumstantial evidence the employee’s Federal Rail Safety Act protected activity played a part in causing the adverse action. In other words, the adverse action qualifies as “intentional retaliation” if there is some causal connection between the employee’s protected activity and the adverse action.
It is the maladroit phrase “an employee must prove intentional retaliation” that gives railroads the opportunity to sow mischief. Railroad attorneys like to quote that phrase out of context and then pretend it overrules settled cat’s paw precedent.
But in fact Kuduk does not change or overrule the United States Supreme Court’s “cat’s paw” decision in Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), nor could it. Here is the full context of the 8th Circuit’s “intentional retaliation” comment in Kuduk:
The cat’s paw theory articulated in Staub is consistent with the [FRSA] regulation stating that the FRSA knowledge requirement may be satisfied by circumstantial evidence the employer had actual or constructive knowledge of protected activity. . . . We agree . . . that, under the [FRSA] statute’s “contributing factor” causation standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” . . . But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.
So, to the extent railroads invoke Kuduk to argue proof of intentional retaliatory motive now is required, that is flat error. Kuduk’s use of the phrase “intentional retaliation” is nothing more than a misleading reference to any adverse action prompted by an employee’s protected activity, and it does not change the fundamental whistleblower law precept that proof of retaliatory motive or intent is not required. The principle remains that whenever an employee satisfies the contributing factor element, then perforce the retaliation is “intentional” and any other evidence of motive or intent is not necessary.
And in fact district court judges cite Kuduk to confirm that the FRSA does not require employees to “conclusively demonstrate” the railroad’s retaliatory motive: see, e.g., Gunderson v. BNSF Railway Co., 2015 U.S. Dist. LEXIS 99046 (D. Minn. July 28, 2015), and Miller V. CSX Transp., 2015 U.S. Dist. LEXIS 112507 (S.D. Ohio August 25, 2015).
Context is everything. Railroad whistleblower retaliation cases cannot be derailed by one imprecise phrase ripped out of context. For more information on Section 20109 of the Federal Rail Safety Act, go the Rail Whistleblower Library.