On the heels of its signal en banc decision in Powers v. Union Pacific Railroad Company, the Administrative Review Board has issued another important decision further clarifying the standard for a “clear and convincing evidence” defense in Federal Rail Safety Act whistleblower retaliation cases.

The case is the ARB’s decision affirming the remand ruling in DeFrancesco v. Union Railroad Company. The ARB begins by highlighting the public policy informing the FRSA whistleblower statute:

A employee’s right to report a workplace injury is “a core protected right” under the FRSA that benefits not only the employee but also the railroad employer and the public. If employees do not feel free to report injuries or illnesses without fear of incurring discipline, dangerous conditions will go unreported resulting in putting the employer’s entire work force as well as the general public potentially at risk.

Where a protected injury report becomes the basis for investigation into the worker’s conduct of a type designed to lead to discipline, there is a heightened danger that the investigation will chill injury reporting by sending a message to other employees that injury reports are not welcome.

Congress responded by making it difficult for railroads to defend against their employee whistleblower retaliation claims by requiring them to prove by clear and convincing evidence it would have taken the same unfavorable personnel action in the absence of the protected activity. “Clear” evidence requires “an unambiguous explanation for the adverse actions in question.” “Convincing” evidence means proof to a “reasonable certainty.” As both the ARB and federal courts stress:

“For employers, this is a tough standard, and not by accident.” One of the important interests Congress sought to protect by the 2007 amendments to FRSA was the right of railroad employees to report injury without fear of retaliation for so doing. …. the legislative history surrounding adoption of the tough clear and convincing standard under the FRSA whistleblower protection provision reveals Congressional concern about a history of retaliation against railway employees who report an injury.

Factors that are fatal to a railroad’s defense include the disparate treatment of injured employees and the selective enforcement of rules and policies. Also fatal is evidence the railroad’s investigation of the injury was conducted more to find some pretext for retaliation than to identify and eliminate the root cause of the hazard that lead to the injury.

So here are the questions the ARB stressed must be answered when determining if the violation of a workplace safety rule is being used as a pretext for discrimination against an injured employee:

• Does the railroad routinely monitor for compliance with the work rule in the absence of an injury?
• Does the railroad consistently impose the same discipline on employees who violate the work rule but do not report an injury?
• Is the rule so vague or subjective it can be easily used as a pretext for discrimination?
• Was the investigation designed more to unearth a plausible basis for punishing the injured employee than to reveal the root cause of the injury?
• Were all the supervisors whose actions or inaction contributed to the root cause of the injury also disciplined, or was only the injured employee disciplined?

Bottom line? DeFrancesco confirms it is not enough for the railroad to show the employee was disciplined for violating a safety rule. It is not enough for the railroad to show it disciplines employees who do not report an injury. A railroad’s defense still fails if it cannot prove to a reasonable certainty that it routinely monitors for compliance with the work rule in the absence of an injury, and that it consistently imposes the same discipline on employees who violate the work rule but do not report an injury. For more information on railroad whistleblower rights, go to the Rail Whistleblower Library.