U.S. Supreme Court eliminates need to prove retaliatory intent in FRSA cases
February 8th, 2024
The United States Supreme Court held in Murray v. UBS Securities, LLC, Case No. 22-660, that a whistleblower bringing a claim under a statute with the same legal standard as the Federal Rail Safety Act (FRSA) does not need to prove that the employer acted with "retaliatory intent." A number of lower circuit courts interpreting the FRSA previously held that retaliatory intent is an essential component of proving a FRSA case. See Tompkins v. Metro-North Commuter R.R. Co., 983 F.3d 74, (2nd Cir. 2020); Armstrong v. BNSF Ry. Co., 880 F.3d 377 (7th Cir. 2018); Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014). I wrote about the railroad's attempt to insert an intent requirement into the FRSA in a prior Rail Law Blog post. The Supreme Court today eliminated such a requirement, making it much easier for a railroad employee to prove a claim under FRSA.
The FRSA, like several other whistleblower laws, applies the legal burdens of proof set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21 standards). The AIR 21 standards utilize a burden-shifting process referred to as the "contributing factor" framework to determine liability. To prove a claim under the FRSA, a whistleblower first must show that he engaged in protected activity (e.g., reported a workplace injury or hazardous condition) and that his protected activity "was a contributing factor in the unfavorable personnel action" (e.g., discharge, suspension, demotion, etc.). If the claimant makes that showing, the burden shifts to the railroad to show by "clear and convincing evidence" that it would have taken the same action in the absence of the protected activity. As the Supreme Court notes in Murray, this framework was intended to lessen the burden on whistleblowers, particularly in industries (such as the railroad) "where whistleblowing plays an especially important role in protecting the public welfare." The Court held that the language of the statutes at issue do not contain a requirement within this framework of proving a retaliatory intent. "The burden-shifting framework provides a means of getting at intent, and Congress here has decided that the plaintiff's burden on intent is simply to show that the protected activity was a 'contributing factor in the unfavorable personnel action.'" The motive of the employer does not matter - when an employer treats someone worse "because of" protected activity, the employer violates the law.
The lower courts requiring a retaliatory intent mistakenly focused on the word "discriminates" in the whistleblower statutes and suggested that to establish discrimination a claimant had to show a retaliatory intent or animus. The Murray court disagreed, holding that to discriminate means simply "differential treatment," or to "make a difference in treatment or favor (of one as compared with others)." Murray, supra. quoting Bostock v. Clayton County, 590 U.S. 644, 657 (2020). Use of the word discriminate in the whistleblower statutes does not impose an additional requirement that employees prove a retaliatory motive. The only showing of intent required is that the employee was disciplined because of his protected activity. In Murray, the court found that the "burden-shifting framework worked as it should...The jury heard both sides of the story. It then determined that Murray had shown that his protected activity was a contributing factor in his firing while UBS had not shown that it would have taken the same action in the absence of his protected activity. That burden shifting - and not some separate, heavier burden on the plaintiff to show 'retaliatory intent' - is what the statute requires."
There are times, albeit fewer and fewer, where the scales of justice are tipped in favor of working people. Today is one of those times. Murray removes a significant burden from whistleblowers - proving the motive or intent of supervisors when the railroad is typically in control of much of the evidence makes FRSA claims very difficult. An industry culture that is hostile to the reporting of safety concerns can have disastrous consequences, as we see in places like East Palestine, Ohio. The FRSA was meant to protect the rights of whistleblowers in the railroad industry, not present insurmountable hurdles. The Supreme Court recognized that in Murray. The Court stated, "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."
Categories: Rail Law Blog