Federal Rail Safety Act whistle blower law continues to benefit from the cleansing effect of the Supreme Court’s unanimous decision in Murray v. UBS. In Ziparo v. CSX Transportation Inc., the Second Circuit’s application of Murray confirms the correct causation standards that must be applied in rail whistle blower cases, and overrules all precedents to the contrary:

In light of Murray, we now recognize that an employee need not demonstrate an employer’s retaliatory motive, intent, or animus to meet their causation burden. Instead, an employee must only demonstrate, by a preponderance of the evidence, that their protected activity “contributed” to the employer’s adverse employment action. And an employee may do that with circumstantial evidence, including sufficiently close temporal proximity alone.

Murray and now Ziparo confirm that the Third Circuit’s landmark decision in Araujo v. New Jersey Transit Rail Operations had it right from the get-go.

The Hierarchy of Employment Discrimination Causation Standards

To put the FRSA’s contributory factor standard in context, Ziparo delineates the hierarchy of employment discrimination causation standards.

The highest bar for a plaintiff employee to clear is the “sole or primary” cause standard: proof that the employer’s unlawful conduct was the only cause of the employee’s injury.

A step lower is the “but-for” causation test: proof that but for the employer’s unlawful conduct, the employee’s injury would not have occurred. Since there usually is more than one but-for cause, this expands employer liability beyond the sole cause standard.

A step still lower is the “motivating factor” causation standard: proof that the employee’s protected activity was a motivating factor in the challenged employment action. This is even more forgiving, as the employer can be found liable even if the protected activity was not a but-for cause of the adverse action.

The lowest, most employee friendly causation standard is the “contributory factor” standard: proof that the employee’s protected activity, alone or in combination with other factors, contributed in any way to the employer’s decision to take an adverse employment action against the employee. The employee does not have to show his protected conduct was a significant, motivating, substantial, or predominant factor. All the employee need show is that his protected activity had an actual effect that helped bring about the adverse action.

Two-Step Burden of Proof

Ziparo reaffirmed the two-step burden of proof in FRSA cases.

At step one, the plaintiff employee has the burden of establishing by a mere preponderance of the evidence that (1) he or she engaged in FRSA protected activity, (2) the relevant supervisors were aware of that protected activity, (3) he or she suffered an unfavorable personnel action, and (4) the protected activity was a contributing factor in the unfavorable action. All the employee need do is to show that the protected activity “played only a very small role” in the adverse action. The railroad’s “legitimate, non-retaliatory reason for the adverse action is not to be considered at the initial causation stage.”

If the employee clears that very low bar, the second and final step is for the railroad to prove, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the protected activity. That is a much higher burden of proof, way above a mere preponderance of evidence and just below proof beyond a reasonable doubt. Articulating some legitimate business reason for the employment action is not enough. It requires the railroad to prove it is reasonably certain it would have taken the exact same unfavorable action against the employee if there had been no protected activity.

In Murray, the Supreme Court explained that this employee friendly causation scheme expresses Congress’s policy judgment that “personnel actions against employees should quite simply not be based on protected whistle blowing activities–not even a little bit.” This is because in industries such as railroads, “whistle blowing plays an especially important role in protecting the public welfare.” Accordingly, the FRSA’s whistle blower protections are designed to “ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employers.”

This two-step burden of proof applies in both Department of Labor and federal court proceedings.

Close Temporal Proximity Alone Is Enough

Ziparo also holds that close temporal proximity between an employee’s protected activity and the railroad’s adverse employment action is in itself sufficient to satisfy the contributing factor standard. And there is no “bright line” demarcating the outer limits of proximity, it depends on the circumstances of each case. Courts have held that five months is not too long to find a causal relationship, and where an employee relies on other types of evidence the lapse in time between the protected activity and the adverse action can be much longer.

Other Types of Circumstantial Evidence

An employee can establish a causal connection between the protected activity and the adverse action either through direct or circumstantial evidence. Given the nature of employment retaliation claims, most of the evidence will be circumstantial. Ziparo provides a non-exhaustive list of such circumstantial evidence:

–temporal proximity
–indications of pretext
–inconsistent application of the railroad’s policies
–the railroad’s shifting explanations for its actions
–antagonism or hostility toward the employee’s protected activity
–the falsity of the railroad’s explanation for the adverse action taken
–a change in the railroad’s attitude toward the employee after he or she engages in protected activity

As the Second Circuit noted, FRSA plaintiffs will defeat a summary judgment motion whenever “they proffer sufficient evidence–direct or circumstantial, including evidence of temporal proximity–from which a reasonable jury could infer that the protected activity contributed, in any way, to the challenged adverse action.”

A Hostile Work Environment Is Actionable

The Second Circuit also held that “a retaliatory hostile work environment is a cognizable adverse employment action under the FRSA.” This is true whenever the railroad “treats an employee worse because of protected activity, even if the employee has not suffered economic consequences.” And it is especially true when rail supervisors create an unsafe environment by causing employees “to be stressed and distracted and therefore unable to focus on their work.”

Evidence of violence or threats of violence is not required to establish a hostile work environment. All an employee need show “is whether the actions, taken in the aggregate, are materially adverse and would dissuade a reasonable employee from” engaging in the protected activity. And it is a jury question whether the actions would dissuade a reasonable employee.

The Effect of Inextricably Intertwined Elements on a Railroad’s Defense

The Ziparo Court points out a critically important aspect of how to analyze a railroad’s “clear and convincing defense”: when the protected and non-protected elements of a FRSA claim are “tightly intertwined”

in considering what would have happened in the absence of the employee’s activity, we must excise not only the protected activity, but also the facts logically connected to the protected activity.

This means a railroad cannot “split hairs between protected and non-protected aspects of an employee’s complaint.” Simply put, a railroad cannot rely on facts connected to the protected activity as the basis for discipline. So, for example, when a railroad fires an employee for filing an allegedly “late” or “false” injury report, the railroad must prove that it would have fired the employee for reasons totally unrelated to the filing of the injury report. The timing or the contents of the injury report cannot be used as a basis for the discipline. Rather, the railroad must prove it would have fired the employee if there was no injury report at all. See How to Make Railroads Pay for “Late” or “False” Injury Report Discipline.

This is consistent with the Supreme Court’s instruction in Murray that

The right way to think about the employer’s clear and convincing defense is to change one thing at a time and see if the outcome changes: if an employer would have let go an otherwise identical employee who had not engaged in the protected activity, the employer has met its burden. But an employer does not meet this burden merely by proving what it could have done–instead, it must show what it would have done in a counterfactual scenario in which the plaintiff had engaged in no protected activity.

In other words, the question is whether the railroad can prove by clear and convincing evidence that it would have imposed the same discipline on an otherwise identical employee who had not engaged in any protected activity at all.

The take away? Ziparo brings the Second Circuit in line with the Supreme Court’s Murray precedent and provides a convenient guide for analyzing rail whistle blower claims. For more on the rights of railroad whistle blowers, go to the free Rail Whistleblower Library.

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.

Just as the FRSA protects rail workers who report safety hazards, the Seaman’s Protection Act (SPA) protects mariners who report safety issues directly to the U.S. Coast Guard. But the American division of the Maersk international shipping conglomerate prohibits seaman from reporting safety concerns to the U.S. Coast Guard without first reporting internally. In a landmark ruling eight months ago, OSHA slammed Maersk with punitive damages for firing a seaman who reported directly to the Coast Guard. Here is a commentary on OSHA’s detailed findings regarding Maersk’s SPA violations.

Now it turns out the cargo ship that took out Baltimore Harbor’s Francis Scott Key Bridge was time chartered by Maersk. This looks to be an East Palestine moment for the maritime shipping industry. The press is hammering Maersk, and the National Whistleblower Center is calling for a Congressional investigation. Here are just a few of the articles:

For more on the right of maritime employees under the Seaman’s Protection Act, go to the free Rail Whistleblower Library.

In a unanimous opinion, the United States Supreme Court today put an end to the bogus idea that whistleblower employees have to prove “intentional retaliation.”

The question in Murray v. UBS Securities LLC was whether whistleblower protection statutes such as the Federal Rail Safety Act require employees to prove “intentional retaliation” in addition to the usual contributory factor element. The Court held that while whistleblowers bear the burden of proving their protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint, they are NOT required to make some further showing that their employer acted with “retaliatory intent.”

The Court’s decision overturns the line of FRSA cases that started with Kuduk, surgically removing the “retaliatory intent” cancer that had spread among various Circuits and the Administrative Review Board. It is bad news for railroads but great news for rail workers who report safety hazards, injuries, or violations of FRA regulations.

The Supreme Court concluded its opinion by reminding railroads that

the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. 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 than the statute itself provides.

Here is the full text of Murray v. UBS. For more on the rights of railroad whistleblowers, go to the free Rail Whistleblower Library

After today’s oral argument at the U. S. Supreme Court, the concept of “intentional retaliation” in whistleblower cases is on life support, and I predict that in a few short months the Supreme Court will pull the plug on it for good.

The Federal Rail Safety Act and statutes like it specify a two-step burden of proof: first, the employee has the burden of proving the protected activity was a contributory factor in the adverse action, and then the employer has the burden to prove by clear and convincing evidence it would have taken the exact same action in the absence of the protected activity.

The question in Murray v. UBS Securities LLC is whether whistleblower protection statutes such as the FRSA require employees to prove “intentional retaliation” in addition to the usual contributory factor element. In its Murray decision, the 2nd Circuit said yes, relying on the line of FRSA cases beginning with Kuduk v. BNSF Railway Company that requires employees to prove “intentional retaliation” as part of their prima facie case. In effect, those FRSA cases eliminated the two-step burden of proof by placing both burdens of proof on the employee.

The oral argument today focused on whether there is a separate additional “intentional retaliation” element employees must prove, or whether the usual two-step burden shifting remains in place. The comments of the Justices confirmed that “intentional retaliation” is a bogus concept pulled out of thin air by the 8th Circuit in Kuduk and does not change the usual two-step burden scheme. Justice Gorsuch’s comment is typical: “I just don’t see ‘retaliation’ in the stature. You are asking us to read into the statute words not there.”

All the Justices seemed to acknowledge an employer’s intent to discriminate is sufficiently established by the employee’s proof of the first step, and there is no additional “intentional retaliation” element for the employee to prove. And this makes sense, as the first step includes proof the employer had knowledge of the protected activity, and that knowledge, combined with the contributory factor proof, is sufficient to show an employer’s intent to discriminate.

Stay tuned for the upshot of this case, but the days of “intentional retaliation” are definitely numbered. For more on the rights of railroad workers under the FRSA, see the free Rail Whistleblower Library

.

Just as the FRSA does on the railroad, the Seaman’s Protection Act (SPA) protects workers in the maritime shipping industry who report safety hazards. But there are only a handful of SPA whistleblower cases. Why the dearth of such cases?

The answer lies in the culture of the maritime industry, and in particular carrier policies prohibiting seamen from reporting safety concerns directly to the U.S. Coast Guard. This was the policy present in the leading SPA case, Loftus v. Horizon Lines (here is the Loftus ALJ Decision, and here is the ARB Decision). The expert trial testimony in Loftus confirmed it is “standard business practice” in the maritime industry for carriers to have in place corporate policies prohibiting seamen from reporting safety concerns directly to the USCG. And when employees such as Captain Loftus violate such policies by contacting the Coast Guard anyway, they are fired, sending a profoundly chilling effect throughout the ranks. So no wonder there are so few SPA whistleblower cases.

But now, in a landmark development, the Department of Labor’s OSHA Whistleblower Directorate has put the merchant marine industry on notice that such policies must be scrapped. And OSHA is doing so with the full support of the United States Coast Guard.

OSHA found that Maersk Line Limited–one of the world’s largest providers of marine cargo services–illegally suspended and terminated a seaman who reported safety concerns directly to the U.S. Coast Guard. OSHA ordered Maersk to pay the seaman over $700,000 in make whole damages, and to reinstate and promote him. And more importantly, OSHA ordered Maersk to drop its policy prohibiting seamen from directly contacting the U.S. Coast Guard. OSHA found such a policy is an egregious violation of the SPA whose chilling effect calls for $250,000 in punitive damages, the maximum amount. OSHA ordered Maersk to notify all its seamen of the revised policy and to post the following Notice in a conspicuous place in all its facilities:

OSHA has ordered your employer to change its policy that previously required you to report regulatory issues to your employer prior to reporting to outside agencies, such as the U.S. Coast Guard. The new policy removes any requirement that you report regulatory issues internally before you contact outside agencies.

This is a sea change in the maritime industry. Seamen no longer need to be afraid of going directly to the U.S. Coast Guard or ABS with safety concerns. Here is the full Merit Finding against Maersk. For more on the Seaman’s Protection Act and similar statutes, go to the free Rail Whistleblower Library.

The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety condition.” In a recent landmark decision, the 2nd Circuit Court of Appeals held that such good faith only requires proof of a subjective belief, and rail workers do not have to prove both a subjective and objective basis for believing a condition is hazardous. Ziparo v. CSX Transp. Inc.

The 8th Circuit now endorses and follows that standard. In Monohon v. BNSF Ry. Co., the 8th Circuit holds “good faith as used in the FRSA requires only that the reporting employee honestly believes that what she reports constitutes a hazardous safety condition.”

The 8th Circuit goes on to note that the refusal-to-work provision of the FRSA has a higher standard and does require proof of objective reasonableness. However, the FRSA’s refusal-to-work provision is rarely invoked, while there is a multitude of hazardous condition reporting cases.

Regarding damages, the 8th Circuit Monohon decision also addresses reinstatement versus front pay. The FRSA states that an employee who prevails in a FRSA action “shall be entitled to all relief necessary to make the employee whole.” The 8th Circuit notes the FRSA goes on to state such relief “shall include” reinstatement, and so “unambiguously requires reinstatement.” However, the Circuit Court also recognizes “this requirement is not absolute” and that courts have the discretion to award front pay when reinstatement is not possible. But there is no question reinstatement is the default FRSA remedy, and can be replaced by front pay only under limited circumstances, or by agreement of the parties.

Of note, both Ziparo and Mohohon analyze and apply the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation, and highlights the plain error of courts that fail to apply Section 20109’s plain statutory language, as for example by ignoring the FRSA’s statutory “due in whole or in part” contributing factor standard causation standard and applying a “proximate cause” standard instead.

Here are links to the complete text of Ziparo and the complete text of Monohon. For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.

By now most rail industry union reps and attorneys know there are federal statutes protecting railroad and mass transit employees from whistleblower retaliation. But there is another special federal law that allows such workers to reap multimillion dollar bounties.

The name of that statute is the False Claims Act (FCA). The purpose of the False Claims Act is to punish the dishonest receipt of government monies and thus deter others from defrauding taxpayers. The FCA imposes triple damages and fines against the defrauding party and entitles the whistleblower relator to a share of the government’s recovery, usually around 20% (e.g., the whistleblower’s share on a $100 million governmental recovery is $20 million).

The False Claims Act applies to all federal (and most State) funded contracts, grants, or programs. It imposes liability on any person, business, contractor, or entity that submits a false claim in order to receive governmental funds. Examples of false claims include:

  • Falsely certifying a condition of payment
  • Billing for services not done or that are unnecessary
  • Over billing or double billing
  • Billing for substandard goods or services
  • Failing to pay or refund monies owed to the government

All false claims going back 6-10 years are fair game. However, FCA cases are fraught with hurdles and pitfalls. They can only be brought by an attorney on behalf of the whistleblower relator. Only the first relator to file can recover a bounty. The complaint must be filed under a strict seal. And any public disclosure or breach of the seal can be fatal to a relator’s claim.

One area that has not received the false claims attention it deserves is transportation infrastructure construction projects. Such projects include the construction or renovation of rail, tunnels, bridges, highways, and port infrastructure, and are subject to the FCA because they involve substantial federal and state funding. Two examples are the MTA’s East Side Access to Grand Central Terminal and the Moynihan Station renovation at the Penn Station Post Office.

A recent example of a transportation related FCA case is the $1.3 million dollar settlement in my client Bill Marshfield’s FCA suit against a contractor who installed speed cameras for the New York City Department of Transportation. Marshfield is a master electrician who blew the whistle on the contractor’s installations that did not comply with DOT specifications and electrical codes. His bounty was 21% of that total settlement, and he also will receive 100% of his still pending retaliation claim.

Such FCA fraud is bound to increase once the monies from the federal government’s $1 trillion dollar infrastructure bill start to flow. Experience tells us 5% of those funds will be lost to fraud. That is $225 billion in fraudulent payments. Examples of such future transportation infrastructure projects in the New York City area alone include the construction of the Gateway Hudson River Tunnel, Metro North Railroad’s Penn Station Access, and the repair of the East River Tunnels. Of note, Amtrak will be receiving an additional $68 billion in infrastructure improvement funds, and although Amtrak’s enabling legislation exempts it from the False Claims Act, all of Amtrak’s numerous contractors and subcontractors are fully subject to FCA liability.

So here is the message to all union reps, employees, and managers involved in such transportation infrastructure construction projects: be on the lookout for potential false claims. If you have concrete information showing the misuse of federal or state monies within the past 6-10 years, your first step should be to contact an experienced False Claims Act attorney for a confidential consultation to see if you qualify for what could be a life changing FCA bounty. Start here for more information on the False Claims Act.

The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety or security condition.” But what exactly does that mean? In a case of first impression for the Circuit Courts, the Second Circuit analyzes the plain meaning of that statutory language and concludes:

we hold that a railroad employee engages in protected activity under FRSA Section 20109(b)(1)(A) when she reports what she subjectively believes to be a hazardous safety or security condition irrespective of whether that understanding is objectively reasonable.

Ziparo v. CSX Transportation. In other words, a worker does not have to prove both a subjective and objective basis to believe a condition is hazardous. A subjective belief alone is sufficient.

And what constitutes a “hazardous safety or security condition”?  Again applying the plain language of the FRSA statute, the Second Circuit soundly rejects all the district court decisions limiting that term to “physical conditions that are within the control of the rail carrier.” Rather, the Circuit explains why the term is much broader, potentially embracing any work-related condition that may affect the safety of a railroad’s operation:

In sum, FRSA Section 20109(b)(1)(A) protects an employee reporting what she sincerely believes constitutes a hazardous safety or security condition, regardless of whether the railroad or a similarly situated employee would reach the same conclusion or whether the report relates to physical conditions or employment practices that create safety or security hazards.

The Court also held “that complaints of stressful and distracting work conditions may well fall within the scope of hazardous safety or security conditions,” although with the caveat that to qualify such conditions must be generated by or within the control of the railroad, not by an employee’s personal life.

Ziparo is a refreshing decision analyzing and applying the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation (see for example its recent Bostock decision), and highlights the reversible error of courts applying “various appellate decisions interpreting other whistleblower statutes that” do not contain Section 20109’s specific language.

Bottom line? Rail workers no longer have to provide an objective basis for believing a condition is hazardous, and such conditions are not limited to the physical structure to the railroad. The Court noted this does not impose an unreasonable burden on railroads, because

The FRSA does not require the railroad to take remedial action on the basis of the employee’s report, or even to investigate the reported condition. If the railroad concludes that the report does not really create a safety or security concern, it remains free to dismiss the report entirely. To avoid liability under the FRSA, it need only refrain from punishing the employee making the report.

Ya gotta love that last line: to avoid liability the railroad “need only refrain from punishing the employee making the report.” In other words, just don’t shoot the messenger. What a novel idea! Who knew it was so easy for railroads to avoid FRSA liability? Here is the full decision in Ziparo v. CSX Transportation. For more on the rights of rail workers, go to the free Rail Whistleblower Library.

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.