Search results for: bunge

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.

STEP ONE
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.

STEP TWO
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.

The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and a railroad violates Section 20109 if an employee’s untimely reporting contributed “in whole or in part” to the disciplinary action:

a railroad employer can, in fact, be held liable under the FRSA if it disciplines an employee based on its honestly held belief that the employee engaged in misconduct or committed a rules violation. Liability will still exist notwithstanding such a belief if the railroad’s retaliatory motive also played a contributing role in the decision and if the railroad fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected report.

The Circuit Court went on the underscore there is no inconsistency between a railroad being motivated in part by an honestly held belief the employee violated a rule and in part by a motive to retaliate against the employee for engaging in a FRSA protected activity.

The practical effect of this is to negate a railroad’s ability to discipline an employee for the “late” or “untimely” reporting of injuries. And in fact other federal courts have voided “late reporting” discipline based on a railroad’s rule requiring the “prompt” or “immediate” or “before end of shift” reporting of injuries. This is because the charge that an employee’s injury report was “late” is, while true, inextricably intertwined with the protected act of reporting the injury. In other words, the late reporting discipline cannot be explained without discussing the employee’s protected activity of reporting the injury. See, e.g., Smith-Bunge v. Wisconsin Central, Ltd., and Williams v. Illinois Central RR.

Here is the full Blackorby II decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Railroad defense lawyers love to file summary judgment motions because it delays the trial while padding their hourly bills.  But the Federal Rail Safety Act now allows employees to turn such motions into a sword that guts the railroad’s defense.

The facts in Smith-Bunge v. Wisconsin Central, Ltd  follow a familiar pattern. Todd Smith-Bunge felt some pain in his low back when he slipped on taconite pellets, but figured it was the usual soreness from an old back injury that would go away after a few days. But when the pain persisted for six days, an MRI scan confirmed he had a new injury.  He then reported it as a new injury, and the Railroad charged him with bad faith late reporting and suspended him for 15 days.

Smith filed a FRSA complaint in federal court, and the Railroad filed a summary judgment motion arguing the late injury report was not made in good faith and thus was not a FRSA protected activity.  Smith responded by filing his own motion for summary judgment, asking the federal  judge to declare the Railroad violated his FRSA right to report a work-related injury without being disciplined.

U.S. District Judge Ann D. Montgomery found Wisconsin Central did indeed violate the FRSA, and ordered a trial on damages.  In so doing, the judge noted:

the FRSA does not require that reported injuries be “new”; nor does the FRSA require employees follow any particular reporting regime. The FRSA only requires that the employee act in good faith to inform his or her employer of a work-related injury.  By calling his supervisor to inform him that he was suffering from low back pain and needed to see his doctor the next day, Smith acted in good faith to report a work-related injury.

The judge also rejected the Railroad’s absurd argument that “Smith was disciplined for making an untimely injury report, not for reporting the injury itself.”  The judge stressed that railroad “rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all” and pointed out how a railroad’s artificially short window for injury reporting violates the FRSA:

As a general matter, railroad work is physically strenuous and feeling stiff and sore is common among railroad workers. In this context, it is not unreasonable to expect that a worker may not appreciate a new injury, or the extent of an initial injury, until several days pass.  This is particularly true where the injury suffered is a more subtle muscular or internal injury, as opposed to a more obvious injury like an open wound or broken bone.  If a worker who suffers a subtle injury knows that reporting the injury after 24 hours will result in disciplinary action, including the possibility of an unpaid suspension, his or her incentive to report the injury is chilled.  This result is contrary to the safety that the Railroad aims to promote by its “prompt” reporting policy, and it is also in direct conflict with the purpose and goals of the FRSA.

The judge also rejected the Railroad’s argument that its duty to report injuries to the Federal Rail Administration justified its Rule requiring the reporting of all injuries within 24 hours, pointing out “a railroad is only required to report injuries to the FRA every 30 days and it is also able to submit amendments to its regular report.”

Given all this, the judge found that “no reasonable juror could conclude that Smith’s injury report was not a contributing factor to the Railroad’s 15-day disciplinary suspension levied against him” and that “no reasonable juror could conclude the Railroad would have disciplined Smith absent a late report of his injury.”  The judge thus denied the Railroad’s motion for summary judgment, granted Smith’s motion establishing liability, and ordered a trial solely on the amount of damages to go forward.

So, thanks to the FRSA, a favorite defense tool easily can be turned into a sword that guts the railroad’s defense.  Here is the full Decision in Smith v. BNSF Railway.  To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.