The Supreme Court’s landmark decision in Murray v. UBS eliminates the use of “intentional retaliation” to defeat Federal Rail Safety Act whistleblower cases. But Murray does much more than that. By clarifying the FRSA’s two step burden of proof, it serves as a road map for winning “late” or “false” injury report FRSA cases. Here’s how.

The Common Scenario

It is a FRSA protected activity for employees to report a work-related injury. The text of the FRSA and the Federal Railroad Administration’s regulations do not place any time limit on the reporting of such injuries (in fact, the FRA freely allows railroads to amend monthly injury reports without penalty, and unless the railroad can prove another worker got injured due to the reporting delay, there is no harm).

However, all railroads place an arbitrarily short window on injury reporting, such as requiring they be reported “immediately” or “prior to end of shift.” For a variety of reasons, workers often end up reporting an injury beyond that artificial time limit, and the railroad then fires them for a “late” or “false” reporting of an injury. The railroad defends its action by saying, “We didn’t fire him for reporting an injury, we fired him for violating our injury reporting rules,” and some judges have fallen for that argument. But after Murray, such an argument is no longer viable, and any railroad that still applies it is just buying a FRSA lawsuit.

Proving the Employee’s Case With the Contributing Factor Framework

Assuming the first three elements of a whistleblower retaliation claim are present–protected activity, railroad knowledge of the activity, and an adverse employment action–all an employee need prove to prevail is that his or her protected activity was a “contributing factor” in the railroad’s decision to take the adverse action. “Contributing factor” is a term of art in the whistleblower retaliation field and signifies the lightest standard of causation in employment law.

Here is the Supreme Court’s explanation in Murray of why the employee’s contributing factor burden of proof is so slight:

The ordinary meanings of the words “contribute” and “factor” suggest that the phrase “contributing factor” is broad indeed. The word “contribute” means “to have a share in bringing about a result, to be partly responsible.” And a “factor” is “any of the circumstances, conditions, etc. that bring about a result.”

Accordingly, all the worker

must show [is] that a reason for the adverse decision was the employee’s protected conduct. The employee need not prove that the protected conduct was the only reason or even that it was a principal reason for the adverse decision. Showing that it helped to cause or bring about that decision is enough.

In conclusion, the Supreme Court stressed that “personnel actions against employees should quite simply not be based on protected whistleblowing activities–not even a little bit.”

Reporting a work-related injury is one of the activities protected by the FRSA statute. When a railroad fires an employee for a “late” or “false” injury report, it is self-evident the employee’s protected conduct of reporting the injury was a reason for the adverse decision. Because the adverse action was based in part on the employee’s protected whistleblowing activity of reporting an injury, the contributory factor element is automatically satisfied.

At that point the employee is entitled to the FRSA’s make whole relief, unless the railroad can prove to a reasonable certainty it would have taken the same adverse action against the worker if he had not reported an injury. But the Supreme Court’s analysis in Murray confirms why no such defense is available to railroads in “late” and “false” injury reporting cases.

Defeating the Railroad’s Only Defense With But-For Causation

The FRSA’s burden-shifting framework provides that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of” the protected behavior. “Clear and convincing evidence” means “the thing to be proved is highly probable or reasonably certain.”

In Murray, the Supreme Court spelled out how to analyze that defense:

The right way to think about that kind of same-action causation analysis is to “change one thing at a time and see if the outcome changes.” The question is whether the employer would have “retaine[ed] an otherwise identical employee” who had not engaged in the protected activity.

The Supreme Court is referring to the “but for” causation standard it explained in Bostock v. Clayton Cty., 590 U. S. 644 (2020):

That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

The Bostock Court further explained:

the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s [statutorily protected conduct] was one but-for cause of that decision, that is enough to trigger the law.

So what happens when we apply this but-for analysis to a railroad’s decision to fire an employee for a “late” or “false” injury report? The sequence of events is: the employee reports an injury, and then the railroad fires him by labeling the report “late” or “false.”

So change one thing at a time and see if the outcome changes. Assume the employee did not report an injury. Does the outcome change? Would he still be fired? Of course not. The basis for his firing was his FRSA protected conduct of reporting of a work-related injury. Change that and the outcome changes. As such, the employee’s report of an injury constitutes a but-for cause.

Remove the worker’s FRSA protected conduct, and he would not be fired. That is sufficient to defeat the railroad’s defense. It matters not that the railroad can point to some other factors, such as the timing or details of the injury report, because–as the Supreme Court explained in Murray--such factors are not “completely separate and distinct from the protected” conduct of reporting the injury.

Take Away
By negating any precedent applying “intentional retaliation” and “proximate cause” to FRSA cases, Murray breathes new life into precedents such as Smith-Bunge v. Wisconsin Central and Ray v. Union Pacific Railroad Company. From this point on, any railroad that dares to fire an employee for “late” or “false” injury reporting will end up paying for the employee’s reinstatement, lost wages, emotional distress, punitive damages, and attorney fees. But as the Supreme Court stressed in Murray:

That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection that the statute itself provides.

Amen. For more on the rights of railroad whistleblowers, go to the free Rail Whistleblower Library.