When a rail worker proves that his or her FRSA protected activity was a contributing factor in the adverse personnel action, the railroad may nevertheless avoid liability if it proves by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. The burden of proof is on the railroad to prove that the unfavorable personnel action it imposed was the result of events or decisions independent of the employee’s participation in FRSA protected activity.
But what is such “clear and convincing evidence”? The Administrative Review Board provides some clarity in the case of Lancaster v. Norfolk Southern Railway:
“Clear” evidence means the employer has presented an unambiguous explanation for the adverse action in question. “Convincing” evidence is that which demonstrates a proposed fact is “highly probable.” Clear and convincing evidence “denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain.”
Circumstantial evidence can be used to prove what an employer “would have done” in its efforts to prove its affirmative defense. The circumstantial evidence it presents can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee’s work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.
As such, a railroad’s failure to offer credible, non-discriminatory reasons for its conduct is fatal to a “clear and convincing evidence” defense. An effective way for an employee to cripple the railroad’s defense is to establish that other similarly situated workers who have not engaged in FRSA protected activity were not subjected to disciplinary charges or did not suffer the same severity of discipline.
Here is the ARB’s full decision in Lancaster v. Norfolk Southern Railway, and here is a link to the post on the ALJ’s Lancaster decision. For more on the rights of rail workers, go to the free Rail Whistleblower Library.