FRSA Causation Standard - Another Federal Circuit Rejects "Inextricably Intertwined"

As I have previously discussed in the Rail Law Blog, the most disputed issue in proving a claim under the Federal Rail Safety Act ("FRSA") is often whether an employee's protected activity is a contributing factor in the railroad's unfavorable action. For example, was an employee's report of an on-duty injury a contributing factor in the railroad's decision to discharge him? The railroad will inevitably point to rules violations to justify the employee's discharge, while the employee will argue that his report of an on-duty injury is what triggered the decision. Past cases hold that the necessary link between the protected activity (report of injury) and the adverse action (discharge) can be achieved by showing that the two were "inextricably intertwined," or when the "[discharge] cannot be explained without discussing the protected activity." Benjamin v. Citationshares Mgmt., LLC, ARB No. 12-029 (2013). In DeFrancesco v. Union R.R. Co., ARB No. 10-114 (2012), for example, a railroad employee reported an on-duty injury after he slipped on snow and ice while directing rail cars into a steel mill. The railroad reviewed video of the event and pulled the employee's disciplinary record. The employee was charged with multiple rules violations including failing to take precautions while walking on snow, ice, wet spots or other hazards. He was suspended for 15 days. He later brought a claim under the FRSA, arguing that his injury report was inextricably intertwined with the railroad's decision to terminate him. The Administrative Review Board reversed a dismissal of his case, finding that although the employee's "records may indicate a history and pattern of safety violations, the fact remains that his report of the injury on December 6 triggered [his supervisor's] review of his personnel records, which led to the 15-day suspension."

In more recent decisions, the Administrative Review Board and other Federal Circuits have rejected the "inextricably intertwined" standard and require a more stringent showing of causation to establish a claim under the FRSA. On April 12, 2021, the Fifth Circuit Court of Appeals joined that group when it decided Yowell v. Administrative Review Board, No. 20-60274 (5th Cir. 2021). In that case, a railroad employee reported a knee injury to his supervisor. The employee later admitted that he had injured the knee while working the previous week but failed to report it. He was eventually terminated for violating the railroad's rule requiring that injuries be report "immediately, no matter how small." He filed a claim under the FRSA and argued that his protected activity of reporting his on-duty injury was a contributing factor in the railroad's decision to terminate his employment. The two events, he argued, were inextricably intertwined. The Fifth Circuit rejected his argument. The court found that "when an employee engages in a protected activity such as reporting a workplace injury, that employee is not insulated from what would otherwise be appropriate discipline for misconduct that becomes known to the employer at that time or during the course of the employer's addressing the protected activity. In simple terms, a protected activity does not by itself shield an employee from the ramifications of workplace misconduct." The employee's case was dismissed by the Fifth Circuit because there was "unchallenged evidence in the record that it was not the fact of reporting an injury but the failure to report promptly that caused Yowell to be discharged." The Yowell court noted that its decision, and ultimate rejection of the inextricably intertwined standard, follows similar decisions by the Administrative Review Board (see Thorstenson v. BNSF Ry. Co., ARB Nos. 18-0059, 0060); the Eighth Circuit Court of Appeals (see Neylon v. BNSF Ry. Co., 968 F.3d 724 (8th Cir. 2020)); the Seventh Circuit Court of Appeals (see Holloway v. Soo Line R.R. Co., 916 F.3d 641 (7th Cir. 2019)); the Sixth Circuit Court of Appeals (see Lemon v. Norfolk Southern Ry. Co., 958 F.3d 417 (6th Cir. 2020)); and the Tenth Circuit Court of Appeals (see BNSF Railway Co. v. U.S. DOL, 816 F.3d 628 (10th Cir. 2016) (Although not expressly rejecting the inexplicably intertwined standard, the Tenth Circuit found that the case presented an "exception to the rule" and that the employee "cannot satisfy the contributing-factor standard merely by arguing that BNSF would not have known of his delays in reporting his injuries absent his filing the updated [injury] Report).

Only the Ninth Circuit Court of Appeals has shown continuing support for the inextricably intertwined causation standard. In Thorstenson v. U.S. Department of Labor, No. 20-70211 (9th Cir. 2020), the court held that in dismissing the employee's claim, the "ARB imposed a new burden of proof for causation under which the FRSA claimants must demonstrate the protected activity was a proximate cause of the adverse action. A proximate cause standard is inconsistent with this circuit's law regarding the requirements of the FRSA, which requires plaintiffs to prove only that their protected conduct was a 'factor, which alone or in connection with other factors, tended to affect in any way the outcome of the decision.'"

In my opinion, the trend towards a more stringent causation standard is unnecessary and contrary to the remedial purpose of the FRSA. The primary justification relied upon in the decisions rejecting the inextricably intertwined standard is that employees would be insulated from any misconduct, no matter how egregious, if it were discovered by the railroad through the investigation of a report of a workplace injury (or other protected activity). This rationale ignores the two-step process necessary to prove a claim under the FRSA. The first step requires an employee to make out a prima facie case by establishing (1) he engaged in protected activity; (2) the employer knew of that activity; (3) the employee was subjected to an unfavorable personnel action; and (4) the protected activity was a contributing factor in that unfavorable action. It is at this stage of the case that the inextricably intertwined standard is applied, specifically to the fourth element listed. The remedial nature of the FRSA warrants a minimal causation standard at this stage - if the protected activity triggered the investigation that ultimately resulted in discipline to the employee, it should be enough to prove a prima facie case. The FRSA was amended to include the whistleblower provision to address decades of railroad harassment and intimidation aimed at discouraging employees from reporting workplace injuries or safety hazards. Railroad investigations triggered by such reports are in many instances undertaken specifically to find a basis for retaliation and discipline, often through equivocal rules such as failing to protect oneself from injury. This historical conduct by railroads justifies the inextricably intertwined standard - if the protected activity triggers an investigation that ultimately finds misconduct, and the investigation never would have occurred but for the protected activity, a violation of the FRSA should be found. What about the concern that such an investigation may reveal egregious misconduct on the part of the employee? Should he still be insulated simply because an unrelated protected activity alerted the railroad to his behavior? The answer to these questions are already addressed in the second stage of proving a case under the FRSA. After the employee establishes a prima facie case, the railroad can still avoid liability by demonstrating that it would have taken the same unfavorable personnel action in the absence of the protected activity. This affirmative defense avoids the unfair result where an employee's conduct warrants discipline independent of a protected activity. And it addresses the concerns cited in the cases above without imposing a more stringent causation standard not found in the law.

I will provide more updates in the Rail Law blog as this issue is addressed by the courts.

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