Another Circuit Court has corrected the 8th Circuit’s misuse of the term “intentional retaliation” in FRSA litigation. In Frost v. BNSF Railway Company, the 9th Circuit soundly rejects the suggestion in Kuduk v. BNSF that Section 20109 requires proof of discriminatory animus separate from a showing that the employee’s protected activity was a contributing factor to the adverse action:
What BNSF misses is that the only proof of discriminatory intent that a plaintiff is required to show is that his or her protected activity was a “contributing factor” in the resulting adverse employment action. Showing that an employer acted in retaliation for protected activity is the required showing of intentional discrimination; there is no requirement that FRSA plaintiffs separately prove discriminatory intent. . . .
by proving that an employee’s protected activity contributed in some way to the employer’s adverse conduct, the FRSA plaintiff has proven that the employer acted with some level of retaliatory intent. . .
we hold that although the FRSA’s prohibition on “discriminating against an employee” ultimately requires a showing of the employer’s discriminatory or retaliatory intent, FRSA plaintiffs satisfy that burden by proving that their protected activity was a contributing factor to the adverse employment decision. There is no requirement, at either the prima facie stage or the substantive stage, that a plaintiff make any additional showing of discriminatory intent.
Well said. With its Frost v BNSF decision, the 9th Circuit joins the Administrative Review Board along with the 3rd, 5th, 7th, and Federal Circuits in rejecting Kuduk’s distortion of Section 20109. For more on the FRSA, go to the free Rail Whistleblower Library.