The ARB recently addressed the standard for proving that protected activity was a “contributing factor” in adverse employment actions. It concluded that evidence showing that an employer would have made the same adverse action decision in the absence of protected activity does not bear on whether the protected activity “contributed” to the adverse action. Powers v. Union Pacific Railroad Co., ARB Case No. 13-034 (Mar. 20, 2015) (3-2 decision).
In May 2007, Complainant injured his hand while operating a rail saw at work. He reported his injury to his supervisor and saw several doctors. He was told by his doctors that he would have a number of physical restrictions due to his injury, including a restriction on heavy lifting. A year later, Union Pacific hired an investigator who allegedly secretly recorded Powers engaging in various activities at his home, such as lifting heavy boxes. After viewing the footage, the Company terminated Complainant’s employment. Complainant filed a complaint with OSHA alleging that the Company terminated his employment in violation of FRSA; he claimed he was terminated for reporting a work-related injury. An ALJ found that Complainant could not establish a prima facie case because his protected activity was not a consideration in his employer’s decision to terminate him. The ALJ relied on managers’ testimony that they terminated Complainant for alleged dishonesty.
The ARB’s Decision
Relying on Fordham v. Fannie Mae, ARB No. 12-061 (Oct. 9, 2014) (here is our post on that decision), the ARB ruled that the ALJ erred in determining that Complainant failed to prove his protected activity was a contributing factor in the decision to terminate his employment because Complainant had shown that his injury report played a role in his employer’s decision. The ARB determined that an ALJ must consider whether protected activity contributed to an adverse action separately from whether an employer would have taken the same action regardless of the protected activity. And the ARB thus determined that the ALJ therefore erred by considering the employer’s non-retaliatory reason for terminating Complainant’s employment as part of its analysis of whether the protected activity was a contributing factor.
The standard the ARB addressed applies to cases arising under numerous other whistleblower protection statutes, such as SOX. Moreover, this decision may be subject to scrutiny by federal courts, as it reasonably may be argued that, in many instances, facts showing an employer would have taken the same action regardless of protected activity do indeed substantially impact a determination of whether protected activity contributed to an adverse action.