We know the closer in time between a protected activity and an adverse action, the more powerful is the inference the protected activity was a contributing factor to the adverse action. Indeed, where the protected act and the retaliation occur in quick succession, the inference is overwhelming.

But the opposite is true: the further the distance in time between the protected act and the retaliatory action, the weaker is the causal relationship.

A recent decision from the 2d Circuit Court of Appeals lists the seven types of circumstantial evidence that can be used to prove the protected activity was a contributing factor in the adverse action. Sirois v. Long Island R.R. Temporal proximity is one, and the Sirois Court considers when the gap in time is too wide to support a causal inference.

Here is the bottom line. If the gap is days or a few weeks? Very helpful compelling evidence. Several months? Not a problem, still a plus to stress. But a year or more? Now you are in territory where you need other contributory factor evidence to buttress the causal inference. And if the gap is two years or more, that is simply too attenuated to allow an inference of a causal connection.

However, there is an exception. In its Summary and Discussion of its Final Rules for the FRSA, OSHA pointed out that:

An employee can satisfy the contributing factor standard if he or she shows that the railroad’s adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the retaliating manager, giving rise to the inference that it was a contributing factor in the adverse action. For example, years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the manager did not have the opportunity to retaliate until he was given responsibility for making personnel decisions.

So if you can show a manager was just waiting for an opportunity to retaliate to arise, and then pounced when it did, a gap of years does not matter.

Here is the full Decision in Sirois v. Long Island Rail Road. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

When BNSF track inspector Brandon Fresquez refused to falsify reports of track defect repairs, he was terminated for insubordination. In another example of the transformative power of the FRSA, a federal jury and judge have ordered BNSF Railway to pay Fresquez $1.74 million, including $800,000 in emotional distress, $250,000 in punitive damages, and $696,173 in back and front pay.

The Fresquez v. BNSF Railway Company Decision is notable for its discussion of when front pay is appropriate and how it is calculated.

Although reinstatement is the preferred remedy, front pay may be awarded by the judge when reinstatement is not a viable option. OSHA’s Whistleblower Investigation Manual lists the factors to consider when determining if an award of front pay is appropriate:

the complainant’s job or a comparable job is no longer available; the complainant is not physically able of performing his job; an employer’s offer of reinstatement is not made in good faith; there is “extreme hostility” between the parties and reinstatement would be too disruptive; or returning to work would cause debilitating anxiety or otherwise risk the complainant’s mental health.

Calculating the amount of front pay is necessarily speculative, but a railroad “may not take advantage of the fact that its unlawful conduct was the cause of the uncertainty.” The judge will consider the individualized circumstances of the dismissed employee (work life expectancy, salary, benefits, availability of other work opportunities, etc), and specify an end date for the front pay. In the case of Fresquez, the Judge balanced all the factors and found front pay for 10 years was appropriate.

BNSF argued that Fresquez could have mitigated his damages by seeking employment with other railroads. But the burden of proof to show an employee failed to mitigate his or her damages is on the railroad, and the District Judge ruled BNSF failed to prove “that another railroad will hire a candidate discharged from a Class I railroad for insubordination.”

Here is the full initial Decision in Fresquez v. BNSF Railway Company finding front pay is appropriate, and here is the subsequent Fresquez v. BNSF Railway Company Decision calculating the specific amounts of back and front pay. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

A recent decision from the U.S. Department of Labor’s Administrative Review Board holds, in a case of first impression, that the National Transit Systems Security Act (NTSSA), 6 U.S.C. Section 1142, “provides subway employees protection against retaliation for raising concerns relating to workplace safety, as well as public safety.”

In Janathan Harte v. Metropolitan Transportation Authority et al., the New York City subway system (MTA New York City Transit Authority) argued the NTSSA does not apply to the safety of subway employee work places, only to public spaces used by passengers.

The ARB soundly rejected that argument, confirming for the first time that subway workers who complain of safety hazards in their own workplace are protected from any resulting retaliation. Hopefully this will encourage more subway workers to speak up about hazardous safety conditions at whatever locations they work.

Here is the full decision of Janathan Harte v. Metropolitan Transportation Authority et al. For more on the whistleblower rights of subway and railroad workers, 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.

When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how to finesse that dilemma:

We note it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy company or corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.

See also the ARB’s decision in Leiva v. Union Pacific Railroad Company. The expungement of illegal discipline is a vitally important make whole remedy, and such fine tuning may be necessary to ensure it functions as intended.

For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.


Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:

A wrongfully discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such position.

BNSF submitted no evidence of available comparable jobs for any of the times during which Brough was not working . . . BNSF instead relied solely on Brough’s admission that he did not look for a comparable job during these times. . . . Because BNSF failed to meet its burden of proof, we affirm the ALJ’s back pay award.

So a railroad cannot just rely on an employee’s admission that he or she did not apply for comparable jobs. The burden is on the railroad to prove there were comparable jobs reasonably available to the employee during the lost wage time period. Failure to present such proof is fatal to the railroad’s “failure to mitigate” affirmative defense.

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


The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. Union Pacific Railroad Company, a federal judge rejected a railroad’s attempt to use a disciplinary waiver to bar the employee’s FRSA complaint:

There is no canon against using common sense in construing laws as saying what they obviously mean. The statute is clear that an employee may not waive by agreement the rights and remedies provided by Section 20109. . . . waivers under a collective bargaining agreement, signed by an employee for the conduct which forms the base of his FRSA complaint, do not bar an FRSA claim.

The judge went on to note that such disciplinary leniency agreements are not formal settlements and do not in any way affect an employee’s rights under the FRSA.

All employees should be aware that signing such waivers in order to minimize the amount of unfair discipline assessed against them does not negate their right to bring a FRSA complaint. Here is the complete Montes decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Answer: Yes, it can be, according to the United States Department of Labor. Joshua Cleveland v. Long Island Rail Road (SDNY) is a Federal Rail Safety Act case claiming the Railroad retaliated against an employee after he filed a FELA lawsuit. The United States Attorney filed a Statement of Interest on behalf of the DOL confirming three scenarios when a FELA lawsuit can be FRSA protected activity:

First, an employee’s FELA lawsuit can notify the railroad of the work-related personal injury under FRSA subsection (a)(4) if the employee has not already reported the injury to the railroad. . . .

Second, if an employee has already reported the injury to the railroad prior to filing a FELA lawsuit, the employee’s FELA lawsuit can be protected activity if it provides the railroad with more specific notification of the injury. . . if the FELA lawsuit provides more specific information about the injury (such as that the effects of the injury are much more serious than initially reported) or informs a previously unaware railroad decision maker of the injury, then the FELA lawsuit can “notify or attempt to notify” the railroad of the injury under FRSA subsection (a)(4).

Finally, an employee’s testimony during a FELA lawsuit of allegedly unknown and undisclosed details of an injury can constitute more specific notification of the nature and extent of the injury.

This is consistent with the position of the U.S. DOL Administrative Review Board, which holds that

a FELA lawsuit falls under Section 20109(a)(4) only if the lawsuit provides an employer with “more specific information” about the employee’s injury than the employee had previously reported. Section 20109(a)(4) applies, in other words, only if the FELA lawsuit expands the employer’s knowledge of the injury beyond the information in the employee’s initial report (by, for example, providing new details about the extent, severity or causes of the injury).

And that is the standard recently applied by a federal district judge in deciding if a FELA lawsuit qualified as protected activity under subsection (a)(4), Cleveland v. Long Island R.R. Co.

Of course, the contributing factor element and the clear and convincing defense still apply. But all attorneys should be aware of when a client’s FELA lawsuit or testimony qualifies as FRSA protected activity. Here is the U.S. DOL’s Statement of Interest, and here is the full decision in Cleveland v. Long Island R.R. Co.

For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.


Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with an employee’s right to prompt medical treatment for a workplace injury. In Santiago v. Metro North Railroad, the ARB held the scope of (c)(1)’s prohibition was not limited to the immediate aftermath of a workplace injury. Now, in Wever v. Montana Rail Link, the ARB overrules Santiago and limits the scope of (c)(1) protection to the temporal period immediately following an on-the-job injury:

we will no longer adhere to the interpretation of subsection (c)(1) that the Board had previously set forth in Santiago. Instead, we hold that subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury. Subsection 20109(c)(1)’s provision for prompt “medical or first aid treatment” does not create a statutory right to ongoing or unlimited medical treatment of choice over the entire course of a treatment plan or recovery period for a workplace injury.

The ARB did not lay down any specific temporal limit or boundaries, noting “the determination as to what constitutes an appropriately limited temporal period will necessarily be fact-driven.” So the temporal scope of (c)(1) will have to be determined on a case-by-case basis. What is “appropriate” will depend on factors such as the nature of the employee’s injury and the local availability of treatment options for such an injury.

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


How bad is the safety culture at the MBTA? So bad the Chief Safety Officer was terminated for demanding correction of critical safety issues. And had to file a whistleblower retaliation complaint to set things right.

The National Transit Systems Security Act (NTSSA) is a federal whistleblower protection statute that prohibits transit authorities such as the MBTA from retaliating in any way against employees who raise safety concerns and cooperate with safety investigations by the Federal Transit Authority (FTA) or Federal Railroad Administration (FRA).

In March 2019 my client Ron Nickle was the MBTA’s Chief Safety Officer. Under Federal safety regulations, the first duty of the Chief Safety Officer is to ensure the safety of the MBTA’s passengers and employees. And MBTA management is supposed to provide its CSO with the independent autonomy to do so.

On the morning of March 21st Ron Nickle met with the Federal Transit Administration, Federal Railroad Administration, and State DPU to report on the results of his safety audits and inspections. He highlighted critical safety issues and discussed corrective actions to be taken.

The next morning the MBTA called him into a meeting and abruptly terminated him, giving no reason other than a desire “to move in a different direction.”

On June 27th Ron filed a NTSSA whistleblower complaint with OSHA’s Whistleblower Directorate office in Boston, claiming he was terminated due to management’s negative reaction to his safety activities, inviting as it did regulatory intervention and public scrutiny.

OSHA’s Whistleblower Directorate has served the MBTA with the Complaint and opened up a full investigation. OSHA has the power to enforce a spectrum of remedies against MBTA management, including reinstatement, make whole economic damages, punitive damages, and unlimited reputational damages. Ron will continue to cooperate with federal and state investigators in order to improve the safety of MBTA operations.

Here is the Boston Globe’s article on this developing case. For more on the whistleblower rights of transit and railroad employees, go to the free Rail Whistleblower Library.