To prove a claim of retaliation under the Federal Rail Safety Act ("FRSA"), a railroad worker must prove the following elements: (1) he engaged in a protected activity; (2) the railroad knew about the protected activity; (3) the worker was disciplined or suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action. The final element is often the most disputed in FRSA cases. To establish that protected activity was a "contributing factor" in the disciplinary action, a worker must show that the protected activity, alone or in combination with other factors, tended to affect in any way the outcome of the decision.

Railroads have recently tried to argue that the contributing factor element required workers to also prove that the railroad's decision to take an unfavorable action was "intentional" or done with a discriminatory intent. As support for this argument, the railroads cite to an Eighth Circuit case, Kuduk v. BNSF Ry. Co., in which the court states "the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity." Railroads have made much of this quote in Kuduk, suggesting that since the FRSA is a discrimination statute, a worker alleging a claim must affirmatively prove that the railroad acted with discriminatory intent or animus to be successful. Last month, however, the Ninth Circuit made clear that the reference in Kuduk to intentional retaliation was much ado about nothing.

On January 30, 2019, the Ninth Circuit decided Frost v. BNSF Ry. Co. The court specifically considered the argument above, and rejected the railroad's assertion that a worker must separately show discriminatory intent in an FRSA claim. Instead, the court explained:

"Importantly, the only burden the statute places on FRSA plaintiffs is to ultimately prove...that their protected conduct was a contributing factor to the adverse employment action -- i.e., that it 'tend[ed] to affect' the decision in some way...Showing that an employer acted in retaliation for protected activity is the required showing of intentional discrimination; there is no requirement that FRSA plaintiffs separately prove discriminatory intent...'Under this framework, the presence of an employer's subjective retaliatory animus is irrelevant. All a plaintiff must show is that his 'protected activity was a contributing factor in the adverse [employment] action.'"

Having rejected the railroads' attempts to apply the Kuduk holding too broadly, Frost makes clear that a worker can establish his FRSA claim merely by showing that his protected activity contributed, in any way, to the decision. Although an improper motive may often lurk behind the railroad's actions, actual proof of motive is not required to show that protected activity was a contributing factor. Congress provided a lower burden on whistleblowers in part because it recognized that they may have limited access to the kind of direct evidence that would normally be required to prove motive.