The steady stream of FRSA Section 20109 whistleblower decisions continues apace. Here are some recent notable decisions to keep in mind.
Railroad Bad Faith Conduct
The decision by U.S. District Judge Susan Richard Nelson in Johnston v. BNSF Railway Company is remarkable in several respects. Judge Nelson granted the employee’s Motion for Reconsideration and reversed her prior summary judgment dismissal of the FRSA claim, in part due to a Railway Labor Act arbitrator’s ruling voiding the discipline and reinstating Johnston with full back pay. The Judge noted that a railroad’s “inconsistent application” of its rules and its proffer of reasons that are “unworthy of credence” are enough to allow a jury to infer a retaliatory motive. And the Judge also confirmed that the cat’s paw theory applies: the fact the ultimate decision maker is ignorant of an employee’s protected activity is not a defense when lower level managers with some knowledge of the protected activity provided the information on which the final decision maker based his decision.
Factors Affecting Transfer of Venue
For a discussion of the various private interest and public interest factors controlling a decision on a motion to transfer venue, see Neylon v. BNSF Railway Company.
Bifurcation Not Indicated
In federal court cases involving combined FELA injury and FRSA whistleblower retaliation claims, the attempts by railroads to bifurcate the case into two separate trials have not met with much success. As Judge Nelson pointed out in Johnston, any jury confusion or undue prejudice “can be addressed by careful cautionary instructions to the jury.” And in Wooten v. BNSF Railway Company, the Judge explained why the fact FELA and FRSA claims have distinct elements is not controlling: “Jurors are routinely asked to resolve multiple claims involving distinct elements, defenses, and burdens of proof in a single case.” And given that combined FELA and FRSA claims are factually related with overlapping evidence, it is in the best interest of judicial economy to try them together.
Adverse Action and Inextricably Intertwined
In Stallard v. Norfolk Southern Railway Company, 2017 Ad. Rev. Bd. LEXIS 61 (ARB No.16-022 October 5, 2017), the Administrative Review Board reminds us of the FRSA’s low threshold for adverse action: “where termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employees.” And the ARB also reconfirmed that where “the protected activity and the adverse action are ‘inextricably intertwined,’ there exists a presumptive inference of causation.” And what does inextricably intertwined mean? In the words of the ARB: “Where the basis for the adverse action cannot be explained without discussing the protected activity, the protected activity and adverse action are inextricably intertwined.”
For the complete texts of the cases cited above, click on their links. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.